Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing. (b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party. (c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith. (d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party. (e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party. (f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (WISeQey Corp.), Agreement and Plan of Merger (WISeQey Corp.), Agreement and Plan of Merger (SEALSQ Corp)
Conflicts and Privilege. (a) SPAC and It is acknowledged by each of the parties hereto that the Stockholder Representatives may retain existing special counsel to the Company (“Counsel”) to act as its counsel in connection with the transactions contemplated hereby. The Acquiror and Sub hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, Acquiror and Sub and the CompanyStockholder Representatives, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) Counsel may represent Sponsor the Stockholder Representatives in such dispute even though the interests of Sponsor the Stockholder Representatives may be directly adverse to SPACthe Acquiror, Sub, the Company or its Subsidiaries, and even though such counsel Counsel may have represented SPAC the Company or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsorthe Acquiror, Sub, the Company or its Subsidiaries. All communication between or Acquiror and Sub further agree that, as to all communications among Prior SPAC Counsel, on the one handCompany, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing its Subsidiaries and the Stockholder Representatives that relate in any way to the transactions contemplated by this Agreement, the attorney or solicitor-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Stockholder Representatives and may be controlled by the Sponsor Stockholder Representatives and shall not pass to or be claimed by Companythe Acquiror, SPACSub, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closingits Subsidiaries. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACthe Acquiror, PubCo Sub, the Company or the Quantisimo Companies, on the one hand, its Subsidiaries and a third party other than Sponsor, on a party to this Agreement after the other handClosing, the Sponsor Company and its Subsidiaries may assert the attorneyattorney or solicitor-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Counsel to such third party; provided, however, that neither SPAC, PubCo, the Company nor the Quantisimo Companies its Subsidiaries may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithStockholder Representatives.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Infospace Inc), Merger Agreement (H&r Block Inc)
Conflicts and Privilege. (a) Each of SPAC and the Company hereby agree thatagrees on behalf of its directors, members, partners, officers, employees and Affiliates and each of their respective successors and assigns (including after the Closing, the Surviving Company) (all such parties, the “DLA Waiving Parties”), that DLA Piper (“DLA”) may represent the shareholders or holders of other equity interests of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “DLA WP Group”), in the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement Agreement, any other Transaction Documents or the Transactions arises transactions contemplated hereby or thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other DLA Waiving Parties, and each of SPAC and the Company on behalf of itself and the DLA Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to DLA’s prior representation of the Company, its Subsidiaries or of DLA Waiving Parties. SPAC and the Company, for itself and the DLA Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the DLA WP Group and DLA, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Surviving Company notwithstanding the Mergers, and instead survive, remain with and are controlled by the DLA WP Group (the “DLA Privileged Communications”), without any waiver thereof. SPAC and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the DLA Privileged Communications, whether located in the records or email server of the Surviving Company and its Subsidiaries, in any Action against or involving any of the Parties after the Closing Closing, and SPAC and the Company agree not to assert that any privilege has been waived as to the DLA Privileged Communications, by virtue of the Mergers.
(b) Each of SPAC and the Company hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates and each of their respective successors and assigns (including after the Closing, the Surviving Company) (all such parties, the “STB Waiving Parties”), that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“STB”) may represent the shareholders or holders of other equity interests of Sponsor or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “STB WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby, notwithstanding its prior representation of Sponsor, SPAC or other STB Waiving Parties. Each of SPAC and the Company, on behalf of itself and the STB Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to STB’s prior representation of Sponsor, SPAC or other STB Waiving Parties. Each of SPAC and the Company, for itself and the STB Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between Sponsor, SPAC or among SPAC and/or Sponsorany other member of the STB WP Group, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSTB, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor made prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor Closing, in such connection with the negotiation, preparation, execution, delivery and performance under, or any dispute even though or Action arising out of or relating to, this Agreement, any other Transaction Documents or the interests transactions contemplated hereby or thereby, or any matter relating to any of Sponsor may be directly adverse the foregoing, are privileged communications that do not pass to SPACthe Surviving Company notwithstanding the Mergers, and even though such counsel may have represented SPAC in a matter substantially related to such disputeinstead survive, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, remain with and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be are controlled by the Sponsor STB WP Group (the “STB Privileged Communications”), without any waiver thereof. SPAC and shall not pass to or be claimed by the Company, SPACtogether with any of their respective Affiliates, PubCo successors or assigns, agree that no Person may use or rely on any of the STB Privileged Communications, whether located in the records or email server of the Surviving Corporation following the Closing. Notwithstanding the foregoingCompany and its Subsidiaries, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications Action against or information involving any of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, Parties after the Closing, on behalf of SPAC, PubCo and SPAC and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies Company agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert that any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation privilege has been waived as to the STB Privileged Communications, by virtue of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingMergers.
Appears in 2 contracts
Sources: Business Combination Agreement (Lanvin Group Holdings LTD), Business Combination Agreement (Primavera Capital Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper ArentFox Schiff LLP and Dentons Canada LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC prior to the Closing in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication pre-Closing communications between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo Company or the Surviving Corporation SPAC following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo SPAC and the Quantisimo GNQ Companies, that all pre-Closing communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo SPAC or the Quantisimo GNQ Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo SPAC or the Quantisimo GNQ Companies after the Closing; provided, furtherhowever, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo SPAC or the Quantisimo GNQ Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, SPAC nor the Quantisimo GNQ Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSponsor and GNQ Companies. In the event that SPAC, PubCo SPAC or the Quantisimo GNQ Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.1810.18) so that Sponsor can (at the cost and expense of Sponsor) seek a protective order order, and SPAC, PubCo SPAC and the Quantisimo GNQ Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo SPAC or any Quantisimo GNQ Companies after the Closing, on the other hand hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company SPAC agrees on behalf of itself and SPACand, PubCo and the Quantisimo Companies after the Closing, on behalf of SPAC and the GNQ Companies, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo GNQ Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, Person of the privileges or protections described in this Section 11.18Section 10.18, and (b) neither SPAC, PubCo SPAC nor the Quantisimo GNQ Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo SPAC or any Quantisimo GNQ Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo SPAC or the Quantisimo GNQ Companies after the Closing has have the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 2 contracts
Sources: Business Combination Agreement (IB Acquisition Corp.), Business Combination Agreement (IB Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Acquiror, the Company, PubCo and Merger Sub, on behalf of their respective successors and assigns (including, after the Acquisition Merger Closing, the Surviving Company and the Company Surviving Acquiror), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Merger Closing between or among SPAC (x) the Sponsor, the shareholders or holders of other equity interests of Acquiror or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company, the Surviving Acquiror and PubCo) (collectively, the “Acquiror Group”), on the one hand, and (y) the Surviving Company, PubCothe Surviving Acquiror, SPAC Merger Sub, Target Merger SubPubCo and/or any member of the Company Group, on the other hand, any legal counsel counsel, including L▇▇▇ & L▇▇▇ LLP (including DLA Piper LLP) “Loeb”), that represented SPAC Acquiror and/or the Sponsor prior to the Reincorporation Merger Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the Acquiror Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Company, the Surviving Acquiror or PubCo and even though such counsel may have represented SPAC Acquiror and/or the Sponsor in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsorthe Surviving Company, the Surviving Acquiror or PubCo. All communication Acquiror, the Company and Merger Sub, on behalf of their respective successors and assigns (including, after the Acquisition Merger Closing, PubCo the Surviving Company and the Surviving Acquiror), further agree that, as to all legally privileged communications prior to the Acquisition Merger Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselAcquiror, the Sponsor and/or any other member of the Acquiror Group, on the one hand, and SPAC or SponsorL▇▇▇, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAcquiror Group after the Acquisition Merger Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by the Surviving Company, SPAC, PubCo or the Surviving Corporation following the ClosingAcquiror and PubCo. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Merger Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingCompany.
(b) The Company further agreesPubCo, Acquiror and the Company, on behalf of itself andtheir respective successors and assigns (including, after the Acquisition Merger Closing, on behalf of SPAC, PubCo the Surviving Company and the Quantisimo CompaniesSurviving Acquiror), that all communications hereby agree that, in any form the event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Acquisition Merger Closing between or among (x) the shareholders or holders of other equity interests of the Company and/or any of Prior SPAC Counselits directors, SPAC members, partners, officers, employees or Affiliates (other than the SponsorSurviving Company, or any of their respective Representatives that relate in any way to the negotiation, documentation Surviving Acquiror and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement PubCo) (collectively, the “SPAC Deal CommunicationsCompany Group”), on the one hand, and (y) the Surviving Company, the Surviving Acquiror, PubCo and/or any member of the Acquiror Group, on the other hand, any legal counsel, including DLA Piper (“DLA”) that represented the Company prior to the Acquisition Merger Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, the Surviving Acquiror or PubCo, and even though such counsel may have represented Acquiror, the Company and/or Merger Sub in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company, the Surviving Acquiror or PubCo. Acquiror, the Company and Merger Sub, on behalf of their respective successors and assigns (including, after the Acquisition Merger Closing, PubCo the Surviving Company and the Surviving Acquiror), further agree that, as to all legally privileged communications prior to the Acquisition Merger Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company, Merger Sub and/or any member of the Company Group, on the one hand, and DLA, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe Company Group after the Acquisition Merger Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor the Surviving Company, the Surviving Acquiror and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) PubCo. Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo any privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, information shared by the Sponsor may assert prior to the attorney-client privilege to prevent Acquisition Merger Closing with the disclosure of Company under a common interest agreement shall remain the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent privileged communications or information of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 2 contracts
Sources: Business Combination Agreement (CSLM Digital Asset Acquisition Corp III, LTD), Business Combination Agreement (CSLM Digital Asset Acquisition Corp III, LTD)
Conflicts and Privilege. (a) SPAC and the Company hereby The parties agree that, notwithstanding the fact that Eversheds Sutherland (US) LLP and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Schole LLP (together, the “Company Law Firms”) may have, prior to the Closing, jointly represented the Company, the Sellers Representative and the Sellers in connection with this Agreement, the Transaction Documents and the Transactions, and have also represented the Company and/or its affiliates in connection with matters other than the Transactions, each Company Law Firm will be permitted in the event a dispute future, after the Closing, to represent the Sellers Representative, the Sellers or their respective affiliates in connection with respect matters in which such persons are adverse to the Company or any of its affiliates, including any disputes arising out of, or related to, this Agreement. Each of SPAC and OpCo, who is or has the right to be represented by independent counsel in connection with the Transactions, hereby agrees, in advance, to waive (and to cause its affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with either Company Law Firm’s future representation of one or more of the Sellers Representative, the Sellers or their respective affiliates in which the interests of such person are adverse to the interests of SPAC, OpCo and/or the Company or any of their respective affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and to any prior representation by a Company Law Firm of the Company, PubCothe Sellers Representative, SPAC Merger Subthe Sellers or any of their respective affiliates. The parties acknowledge and agree that, Target Merger Subfor the purposes of the attorney-client privilege, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior Sellers Representative and the Sellers shall be deemed the clients of each Company Law Firm with respect to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though negotiation, execution and performance of the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or SponsorTransaction Documents. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the SponsorSellers Representative and the Sellers, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo Sellers Representative and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor Sellers and shall not pass to or be claimed by SPAC, PubCo OpCo or the Quantisimo Companies Company or the Company Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by the Company or any of its affiliates (including, after the Closing, SPAC, OpCo and their respective affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(b) The parties agree that, notwithstanding the fact that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (the “SPAC Law Firm”) may have, prior to the Closing, represented SPAC, OpCo or Sponsor in connection with this Agreement, the Transaction Documents and the Transactions, and have also represented SPAC and/or its affiliates in connection with matters other than the Transactions, the SPAC Law Firm will be permitted in the future, after the Closing, to represent Sponsor, Energy Spectrum or their respective affiliates in connection with matters in which such persons are adverse to SPAC or any of its affiliates, including any disputes arising out of, or related to, this Agreement. All The Company and each Seller, who is or has the right to be represented by independent counsel in connection with the Transactions, hereby agrees, in advance, to waive (and to cause its affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with SPAC Deal Communications Law Firm’s future representation of one or more of the Sponsor, Energy Spectrum or their respective affiliates in which the interests of such person are adverse to the interests of SPAC, OpCo and/or the Company or any of their respective affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by the SPAC Law Firm of SPAC, OpCo, Sponsor or any of their respective affiliates. The parties acknowledge and agree that, for the purposes of the attorney-client privileged (privilege, Sponsor and Energy Spectrum shall be deemed the “Privileged clients of the SPAC Deal Communications”) Law Firm with respect to the negotiation, execution and performance of the Transaction Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo OpCo or the Quantisimo Companies after Company or the ClosingCompany Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor SPAC or any of its Affiliates affiliates (including, after the Closing, the Company and its respective affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party. [Signature Page Follows.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.]
Appears in 2 contracts
Sources: Business Combination Agreement (ESGEN Acquisition Corp), Business Combination Agreement (ESGEN Acquisition Corp)
Conflicts and Privilege. (a) SPAC The Company, on behalf of its successors and the Company assigns, hereby agree agrees that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC and/or involving the Sponsor, on the one handshareholders or holders of other equity interests of SPAC or the Sponsor or any of their respective directors, and members, partners, officers, employees or Affiliates (other than the CompanyCompany or Surviving Entity 2) (collectively, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand“Sponsor Group”), any legal counsel counsel, including K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP (including DLA Piper LLP) “K&E”), that represented SPAC and/or or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Sponsor Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Company or Surviving Entity 2, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or the Company, Surviving Entity 2 or the Sponsor. All communication The Company, on behalf of its successors and assigns (including, after the Closing, Surviving Entity 2), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Sponsor Group, on the one hand, and SPAC or SponsorK&E, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorSponsor Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo the Company or the Surviving Corporation following the ClosingEntity 2. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closingand Surviving Entity 2.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (L Catterton Asia Acquisition Corp), Merger Agreement (L Catterton Asia Acquisition Corp)
Conflicts and Privilege. (a) SPAC Each of the parties hereto, on its own behalf and on behalf of its Representatives (including, after the Company Closing, the Surviving Corporation), hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC (x) the Sponsor, the stockholders or holders of other equity securities of Parent or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Corporation) (collectively, the “Parent Group”), on the one hand, and (y) the Company, PubCo, SPAC Merger Sub, Target Merger SubSurviving Corporation and/or any member of the Company Group, on the other hand, any legal counsel (counsel, including DLA Piper Winston & ▇▇▇▇▇▇ LLP) , that represented SPAC Parent and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the Parent Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Corporation, and even though such counsel may have represented SPAC Parent in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Corporation and/or the Sponsor. All communication Parent and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Additional Agreements or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselParent, the Sponsor and/or any other member of the Parent Group, on the one hand, and SPAC or SponsorWinston & ▇▇▇▇▇▇ LLP, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorParent Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Parent or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingSurviving Corporation.
(b) The Company further agreesParent and the Company, on behalf of itself andtheir respective successors and assigns (including, after the Closing, on behalf of SPACthe Surviving Corporation), PubCo and hereby agree that, in the Quantisimo Companies, that all communications in any form event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Closing between or among any (x) the stockholders or holders of Prior SPAC Counsel, SPAC or other equity securities of the Sponsor, or Company and/or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsCompany Group”), on the one hand, and (y) the Surviving Corporation and/or any member of the Parent Group, on the other hand, any legal counsel, including ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“PH”) that represented the Company prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Corporation, and even though such counsel may have represented Parent and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Corporation, further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Additional Agreements or the transactions contemplated hereby or thereby) between or among the Company and/or any member of the Company Group, on the one hand, and PH, on the other hand, the attorney-client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe Company Group after the Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Surviving Corporation. Notwithstanding the foregoing, in any privileged communications or information shared by Parent prior to the event that Closing with the Company under a dispute arises between SPAC, PubCo common interest agreement shall remain the privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 2 contracts
Sources: Merger Agreement (Scilex Holding Co), Merger Agreement (Scilex Holding Co)
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (awhich for this purpose, shall be deemed to include the Company) SPAC agrees that, notwithstanding any current or prior representation of the Company by ▇▇▇▇ ▇▇▇▇▇, Esq. and Sidley Austin LLP (the “Counsel”), the Counsel shall be allowed to represent Sellers and any of their Affiliates in any matters and disputes adverse to Buyer and the Company that either are existing on the date hereof or arise in the future. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company) hereby agree waives any claim that Buyer or the Company has or may have that either of the Counsel has a conflict of interest or is otherwise prohibited from engaging in such representation and agrees that, in the event if a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among SPAC and/or Sponsorthe Company and either Seller or any of their Affiliates, on then either or both of the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) Counsel may represent Sponsor Sellers or such Affiliate in such dispute even though the interests of Sponsor Sellers or such Affiliate may be directly adverse to SPAC, Buyer or the Company and even though such counsel the Counsel may have represented SPAC the Company in a matter substantially related to such dispute. Buyer, or may on behalf of itself and its Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC and/or Sponsor. All communication deemed to include the Company), also agrees that, as to all communications between or among Prior SPAC Counselthe Counsel and Sellers, on the one handCompany, and SPAC or Sponsor, on the other hand, shall remain privileged after and/or any of their respective Affiliates that occurred prior to the Closing and related to (i) the negotiation of this Agreement and the agreements, certificates and other documents contemplated hereby or (ii) the Rough Rice Matter, the attorney-client privilege and the expectation of client confidence relating thereto shall in each case belong solely to the Sponsor, shall Sellers and may be controlled by the Sponsor Sellers and shall not pass to or be claimed by Buyer or the Company. Sellers hereby acknowledge and agree that, for all other communications between or among the Counsel and Sellers, the Company, SPACand/or any of their respective Affiliates that occurred prior to the Closing and for which the Company had the right, PubCo or the Surviving Corporation following prior to the Closing, to assert and waive the attorney-client privilege, the Company’s right to assert and waive the attorney-client privilege and expectation of client confidence shall pass to and be claimed by Buyer and the Company. Notwithstanding the foregoing, any privileged communications if an inquiry or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged arises after the Closing and between the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, Company and a third party (other than SponsorSellers or an Affiliate of Sellers), on then the other hand, Company (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by the Counsel (including to prevent any disclosure related to the Rough Rice Matter); provided, however, provided that neither SPAC, PubCo, nor if the Quantisimo Companies may Company elects to waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range shall provide Sellers with reasonable advance notice of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closingsuch waiver.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC prior to the Closing in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication pre-Closing communications between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo Company or the Surviving Corporation SPAC following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo SPAC and the Quantisimo Rumble Companies, that all pre-Closing communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo SPAC or the Quantisimo Rumble Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo SPAC or the Quantisimo Rumble Companies after the Closing; provided, further,however, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo SPAC or the Quantisimo Rumble Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, SPAC nor the Quantisimo Rumble Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo SPAC or the Quantisimo Rumble Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18Section 10.18) so that Sponsor can (at the cost and expense of Sponsor) seek a protective order order, and SPAC, PubCo SPAC and the Quantisimo Rumble Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo SPAC or any Quantisimo Rumble Companies after the Closing, on the other hand hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company SPAC agrees on behalf of itself and SPACand, PubCo and the Quantisimo Companies after the Closing, on behalf of SPAC and the Rumble Companies, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Rumble Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, Person of the privileges or protections described in this Section 11.18Section 10.18, and (b) neither SPAC, PubCo SPAC nor the Quantisimo Rumble Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo SPAC or any Quantisimo Rumble Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo SPAC or the Quantisimo Rumble Companies after the Closing has have the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (CF Acquisition Corp. VI)
Conflicts and Privilege. (a) SPAC The Company and the Company Acquiror, each on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC and/or (i) Sponsor, the shareholders or holders of other equity interests of Acquiror or Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Acquiror Parties”), on the one hand, and (ii) the Company, PubCo, SPAC Merger Sub, Target Merger SubSurviving Company or any member of the Company Parties, on the other hand, any legal counsel counsel, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (including DLA Piper LLP) “HHR”), that represented SPAC and/or Acquiror or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor or any other member of the Acquiror Parties, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Company, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or the Surviving Company or Sponsor. All communication The Company and Acquiror, each on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselAcquiror, Sponsor or any other member of the Acquiror Parties, on the one hand, and SPAC or SponsorHHR, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorAcquiror Parties after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Acquiror or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingSurviving Company.
(b) The Company further agreesand Acquiror, each on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the shareholders or holders of other equity interests of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Company Parties”), on the one hand, and (y) the Surviving Company or any member of the Acquiror Parties, on the other hand, any legal counsel, including ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“PWRW&G”) and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇ ▇▇▇▇”), that represented the Company prior to the Closing may represent any member of the Company Parties in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company. The Company and Acquiror, each on behalf of their respective successors and assigns (including, after the Closing, on behalf of SPACthe Surviving Company), PubCo further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsorperformance under, or any dispute or Action arising out of their respective Representatives that relate in any way to the negotiationor relating to, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelyTransaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Company Parties, on the one hand, and PWRW&G or ▇▇▇▇▇ ▇▇▇▇, on the other hand, the “SPAC Deal Communications”) attorney/client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe Company Parties after the Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Surviving Company. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror or Sponsor prior to the event that Closing with the Company under a dispute arises between SPAC, PubCo common interest agreement shall remain the privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Company.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Isos Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto Parties acknowledges and agrees that Rimon P.C. Steptoe & ▇▇▇▇▇▇▇ LLP and The Law Office of ▇▇▇▇▇ ▇▇▇▇▇▇ PC (collectively, “Prior Company Counsel”) has have acted as counsel to Company, Company Subsidiary, Seller, the Company in various matters involving a range Non-Target Parties and each of issues and as counsel to the Company shareholders of Seller in connection with the negotiation of this AgreementAgreement and consummation of the transactions contemplated hereby.
(a) Buyer hereby consents and agrees to, and agrees to cause, Company and Company Subsidiary to consent and agree to, Counsel representing Seller, the Ancillary Agreements Trusts (including, without limitation, their respective trustees and beneficiaries) and/or any of the TransactionsNon-Target Parties (collectively, the “Seller Parties”) after the Closing, including, without limitation, with respect to disputes in which the interests of the Seller Parties may be directly adverse to Buyer and its subsidiaries (including Company or Company Subsidiary). In connection with any matter or dispute under this Agreementthe foregoing, SPAC Buyer hereby irrevocably waives and agrees not to assert assert, and agrees to cause Company to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and Company Subsidiary and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) Seller Parties prior to and after the Closing, including the communication by Counsel to the Seller Parties in connection with any such representation. Notwithstanding the foregoing, this consent and waiver of the right to assert any conflict of interest is solely limited to matters arising in connection with the negotiation and documentation of this Agreement, the Related Agreements and the transactions contemplated hereby and thereby. Nothing in this Section 9.12 shall constitute a waiver of any attorney-client privilege or any privilege associated with Company or Company Subsidiary on any matter (other than Counsel’s representation of Company or Company Subsidiary in connection with this Agreement, the Related Agreements, and the transactions contemplated hereby and thereby, in a manner that would not materially prejudice Company’s or Company Subsidiary’s rights and obligations vis a vis third parties), and does not waive or excuse Counsel from complying with applicable rules of professional conduct regarding the confidentiality of any client information of Company or Company Subsidiary other than as it pertains to Counsel’s representation of Company or Company Subsidiary in connection with this Agreement, the Related Agreements and the transactions contemplated hereby and thereby.
(b) In addition, all communications involving attorney-client confidences between Company, Company Subsidiary, Non-Target Parties, Seller or the Trusts (including their respective trustees and beneficiaries), on the one hand, and Counsel, on the other hand, in the course of the negotiation and documentation of this Agreement and the Related Agreements shall be deemed to be attorney-client confidences that belong solely to Seller and the Trusts (and not Company or Company Subsidiary) and may be controlled by Seller and the Trusts. Without limiting the generality of the foregoing, upon and after the Closing, Seller, the Trusts and their Affiliates (and not Company or Company Subsidiary) shall be the sole holders of the attorney-client privilege with respect to the negotiation and documentation of this Agreement and the Related Agreements, and neither Company nor Company Subsidiary shall be a holder thereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Everbridge, Inc.)
Conflicts and Privilege. (a) SPAC and Each of the Company hereby agree that, in the event a dispute with respect parties to this Agreement hereby agrees, on its own behalf and on behalf of its stockholders, directors, officers, employees and affiliates, that G▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇, LLP (“G▇▇▇▇▇▇▇▇”) may serve as counsel to the Company in connection with the negotiation, preparation, execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the Transactions, and that, following consummation of the Transactions, G▇▇▇▇▇▇▇▇ may serve as counsel to any Indemnifying Stockholder, any Company Stockholder or any stockholder, director, officer, employee or affiliate of any of Indemnifying Stockholder or any Company Stockholder any action, suit or proceeding directly or indirectly arising out of or relating to this Agreement, the Ancillary Agreements or the Transactions arises after or to interpret, apply or enforce this Agreement, the Closing between Ancillary Agreements or among SPAC and/or Sponsorthe Transactions or for recognition or enforcement of any judgment relating thereto or any other matter, on notwithstanding such representation (or continued representation) of the one handCompany and each of the parties to this Agreement hereby consents thereto and waives any conflict of interest arising therefrom, and each of such parties shall cause any of its respective affiliates to consent to waive any conflict of interest arising from such representation to the fullest extent permitted by Law.
(b) Each of the Parent Entities further agrees that, as to all communications among G▇▇▇▇▇▇▇▇, the Company, PubCothe Indemnifying Stockholders or the Company Stockholders that relate in any way to this Agreement, SPAC Merger Subthe Ancillary Agreements or the Transactions, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall relevant Indemnifying Stockholders or Company Stockholders and may be controlled by the Sponsor such Indemnifying Stockholders or Company Stockholders and shall not pass to or be claimed by CompanyParent, SPAC, PubCo Merger Sub or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third partyCompany.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACParent, PubCo Merger Sub or the Quantisimo CompaniesSurviving Company, on the one hand, and a third party other than Sponsor, on any Third Party after the other handEffective Time, the Sponsor Surviving Corporation may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by G▇▇▇▇▇▇▇▇ to such third partyThird Party; provided, however, provided that neither SPAC, PubCo, nor the Quantisimo Companies Surviving Company may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithRelevant Company Insiders.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Vivakor, Inc.)
Conflicts and Privilege. (a) SPAC Acquiror, the Company and the Company Holder Representative hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC Acquiror, the GPIAC Designated Directors and/or the Sponsor, on the one hand, and the Company, PubCothe Pre-Closing Holders, SPAC Merger Sub, Target Merger Subthe Holder Representative and/or the Escrow Stockholders, on the other hand, any legal counsel (including DLA Piper Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP) that represented SPAC Acquiror, the GPIAC Designated Directors and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the GPIAC Designated Directors and/or Sponsor in such dispute even though the interests of the GPIAC Designated Directors and/or Sponsor may be directly adverse to SPACthe Acquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror, the GPIAC Designated Directors and/or the Sponsor. All communication Acquiror, the Company and the Holder Representative further agree that, as to all legally privileged communications prior to the Closing between or among Prior SPAC Counselany legal counsel (including Skadden, on Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP) that represented Acquiror, the one hand, and SPAC or Sponsor, on GPIAC Designated Directors and/or the other hand, shall remain privileged after Sponsor prior to the Closing and any one or more such Persons that relate in any way to the transactions contemplated by this Agreement, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall GPIAC Designated Directors and may be controlled by the Sponsor such GPIAC Designated Directors, and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following Acquiror (after giving effect to the Closing), the Company and the Holder Representative; provided that the GPIAC Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Acquiror, Sponsor or Sponsor the GPIAC Appointed Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingSurviving Corporation.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Merger Agreement (GP Investments Acquisition Corp.)
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC and/or Sponsoror the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “ACE Group”), on the one hand, and the Company, (y) PubCo, SPAC Merger Sub, Target Merger Subthe Surviving Corporation or any member of the 10P Group, on the other hand, any legal counsel counsel, including K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP (including DLA Piper LLP“K&E”) and A▇▇▇▇▇▇, that represented SPAC and/or or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the ACE Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo, the Surviving Company or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or PubCo, the Surviving Company, the Surviving Corporation or the Sponsor. All communication The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the ACE Group, on the one hand, and SPAC K&E or SponsorA▇▇▇▇▇▇, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorACE Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of PubCo and the Company following the ClosingSurviving Corporation.
(b) The Company further agreesCompany, SPAC and the Acquisition Entities, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever Acquisition Closing between or among any (x) the shareholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, Company or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than PubCo or the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal Communications10P Group”), on the one hand, and (y) the Surviving Corporation or any member of the ACE Group, on the other hand, any legal counsel, including Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP (“Skadden”) and Mourant that represented the Company prior to the Acquisition Closing may represent any member of the 10P Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the 10P Group, on the one hand, and Skadden or Mourant, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe 10P Group after the Acquisition Closing, shall be controlled by Sponsor and shall not pass to or be claimed or controlled by SPAC, PubCo or the Quantisimo Companies after the ClosingSurviving Corporation. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in any privileged communications or information shared by SPAC or Sponsor prior to the event that Acquisition Closing with the Company under a dispute arises between SPAC, common interest agreement shall remain the privileged communications or information of PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Prenetics Global LTD)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. Citron & Deutsch, A Law Corporation (“Prior Company CounselCitron”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby.
(b) Acquiror hereby consents and agrees that, and agrees to cause, the Surviving Corporation to consent and agree that, Citron may represent the Securityholders’ Representative and any of the Company Securityholders (collectively, the “Seller Parties”) after the Closing in connection with issues that may arise under this Agreement or the Escrow Agreement, the Ancillary Agreements administration of the Clawback Shares and any claims that may be made thereunder pursuant to this Agreement or the TransactionsEscrow Agreement, including, for clarity, with respect to such claims in which the interests of the Seller Parties may be directly adverse to Acquiror and its Subsidiaries (including the Surviving Corporation). In connection with any matter or dispute under this Agreementthe foregoing, SPAC Acquiror hereby irrevocably waives and agrees not to assert assert, and agrees to cause the Surviving Corporation to irrevocably waive and not to assert, any conflict of interest arising from or Citron’s representation of the Seller Parties after the Closing. Notwithstanding the foregoing, this consent and waiver of the right to assert any conflict of interest is solely limited to matters arising in connection with the negotiation and documentation of this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby. Nothing in this Section 10.11 shall constitute a waiver of any attorney client privilege or any privilege associated with the Company on any matter (i) Prior Company Counselother than Citron’s prior representation of the Company in connection with this Agreement, the other Ancillary Agreements, and (ii) Prior the transactions contemplated hereby and thereby, in a manner that would not materially prejudice the Company’s rights and obligations vis-à-vis third parties), and does not waive or excuse Citron from complying with applicable rules of professional conduct regarding the confidentiality of any client information of the Company Counselother than as it pertains to Citron’s representation of any member the Company in connection with this Agreement, the other Ancillary Agreements and the transactions contemplated hereby and thereby.
(c) All pre-Closing communications involving attorney client confidences between the Company and the Company Securityholders, on the one hand, and Citron, on the other hand, in the course of and relating to the negotiation and documentation of this Agreement and the Ancillary Agreements shall be deemed to be attorney client confidences that belong solely to the Company Securityholders (and not the Company) and may be controlled by the Company Securityholders. Without limiting the generality of the Quantisimo Companies (collectivelyforegoing, the “Company Advised Parties”) prior to upon and after the Closing, the Company Securityholders and their Affiliates (and not the Surviving Corporation) shall be the sole holders of the attorney client privilege with respect to such pre-Closing communications relating to the negotiation and documentation of this Agreement and the Ancillary Agreements, and the Company shall not be a holder thereof; provided, in the event a dispute arises after Closing between Acquiror or any of its Affiliates (including the Surviving Corporation), on the one hand, and any other Person other than the Company Securityholders or their respective Affiliates, on the other hand, each of Acquiror and the Surviving Corporation may assert the attorney-client privilege with respect to such pre-Closing communications to prevent disclosure thereof to such Person.
Appears in 1 contract
Sources: Merger Agreement (Cure Pharmaceutical Holding Corp.)
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC and/or Sponsoror the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “Altimeter Group”), on the one hand, and the Company, (y) PubCo, SPAC Merger Sub, Target Merger Subthe Surviving Corporation or any member of the Grab Group, on the other hand, any legal counsel counsel, including Ropes & ▇▇▇▇ LLP (including DLA Piper LLP) “Ropes”), that represented SPAC and/or or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or PubCo, the Surviving Corporation or the Sponsor. All communication The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Altimeter Group, on the one hand, and SPAC or SponsorRopes, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAltimeter Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of PubCo and the Company following the ClosingSurviving Corporation.
(b) The Company further agreesCompany, SPAC and the Acquisition Entities, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever Acquisition Closing between or among any (x) the shareholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, Company or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than PubCo or the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsGrab Group”), on the one hand, and (y) the Surviving Corporation or any member of the Altimeter Group, on the other hand, any legal counsel, including Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“Skadden”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) that represented the Company prior to the Acquisition Closing may represent any member of the Grab Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Grab Group, on the one hand, and Skadden or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe Grab Group after the Acquisition Closing, shall be controlled by Sponsor and shall not pass to or be claimed or controlled by SPAC, PubCo or the Quantisimo Companies after the ClosingSurviving Corporation. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in any privileged communications or information shared by SPAC or Sponsor prior to the event that Acquisition Closing with the Company under a dispute arises between SPAC, common interest agreement shall remain the privileged communications or information of PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Altimeter Growth Corp.)
Conflicts and Privilege. (a) SPAC and the Company Acquisition Entities hereby agree thaton behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Burnet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“BD&P”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement Agreement, any Ancillary Document or the Transactions arises after contemplated hereby or thereby, notwithstanding its prior representation of the Closing Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or BD&P’s prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or among SPAC and/or Sponsorany member of the Company Counsel WP Group, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Subeach of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“Prior SPAC Counsel▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent Sponsor in such dispute even though the shareholders or holders of other equity interests of the Sponsor may be directly adverse or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and even though such counsel may have represented the Company, on behalf of itself and the SPAC in a matter substantially related Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to such disputeWachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of SPAC and its Subsidiaries, or may be handling ongoing matters other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC and/or Sponsor. All communication Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or among Prior its Subsidiaries, or any other member of the SPAC CounselCounsel WP Group, on the one hand, and SPAC or Sponsoreach of Wachtell Lipton and Osler, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely made prior to the SponsorClosing, shall be controlled by in connection with the Sponsor negotiation, preparation, execution, delivery and shall performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (b) The Company further agreesthe “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on behalf any of itself andthe SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo the Acquisition Entities and the Quantisimo Companies Company agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert that any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingTransactions.
Appears in 1 contract
Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Conflicts and Privilege. (a) SPAC Acquiror, the Company, PubCo and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Company Amalgamation Closing, the Surviving Corporation), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Amalgamation Closing between or among SPAC (x) the Sponsor, the shareholders or holders of other equity interests of Acquiror or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Corporation) (collectively, the “Bridgetown 2 Group”), on the one hand, and (y) the Company, PubCo, SPAC Merger Sub, Target Merger SubSurviving Corporation and/or any member of the PropertyGuru Group, on the other hand, any legal counsel counsel, including Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (including DLA Piper LLP) “Skadden”), that represented SPAC Acquiror and/or the Sponsor prior to the Amalgamation Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the Bridgetown 2 Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Corporation, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Corporation and/or the Sponsor. All communication Acquiror, the Company and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Amalgamation Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Amalgamation Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselAcquiror, the Sponsor and/or any other member of the Bridgetown 2 Group, on the one hand, and SPAC or SponsorSkadden, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorBridgetown 2 Group after the Amalgamation Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company or Amalgamation Sub prior to the Amalgamation Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingCompany.
(b) The Acquiror, the Company further agreesand Amalgamation Sub, on behalf of itself andtheir respective successors and assigns (including, after the Amalgamation Closing, on behalf of SPACthe Surviving Corporation), PubCo and hereby agree that, in the Quantisimo Companies, that all communications in any form event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Amalgamation Closing between or among any (x) the shareholders or holders of Prior SPAC Counselother equity interests of the Company, SPAC or the Sponsor, or Amalgamation Sub and/or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsPropertyGuru Group”), on the one hand, and (y) the Surviving Corporation and/or any member of the Bridgetown 2 Group, on the other hand, any legal counsel, including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“Latham”), that represented the Company prior to the Amalgamation Closing may represent any member of the PropertyGuru Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Corporation, and even though such counsel may have represented Acquiror, the Company and/or Amalgamation Sub in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Corporation, Acquiror, the Company and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Amalgamation Closing, the Surviving Corporation), and further agree that, as to all legally privileged communications prior to the Amalgamation Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company, Amalgamation Sub and/or any member of the PropertyGuru Group, on the one hand, and Latham, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe PropertyGuru Group after the Amalgamation Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Surviving Corporation. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror prior to the event that Amalgamation Closing with the Company under a dispute arises between SPAC, PubCo common interest agreement shall remain the privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Bridgetown 2 Holdings LTD)
Conflicts and Privilege. Recognizing that ▇▇▇▇ ▇▇▇▇▇ LLP (“Seller Counsel”) has been engaged by the Seller and its Affiliates to represent the Seller in connection with the transactions contemplated hereunder, each Purchaser hereby (a) SPAC waives, on its own behalf and the Company hereby agree thatagrees to cause its Affiliates to waive, in the event a dispute with respect to this Agreement or the Transactions arises any conflicts that may arise after the Closing between the Purchaser or among SPAC and/or Sponsorany of its Affiliates, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSeller or any of its Affiliates, on the other hand, any legal counsel and (including DLA Piper LLPb) agrees that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) Seller Counsel may represent Sponsor the Seller or any of its Affiliates in such dispute even though the interests interest of Sponsor the Seller may be directly adverse to SPACthe Purchaser or any of its Affiliates, and even though such counsel Seller Counsel may have represented SPAC the Purchaser or any of its Affiliates in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsorthe Purchaser or any of its Affiliates. All communication between or among Prior SPAC CounselIn addition, each Purchaser, on its own behalf and on behalf of its Affiliates, further agrees that, notwithstanding anything in this Agreement to the one handcontrary, and SPAC as to all communications among any of Seller Counsel or Sponsorthe Seller or any of their respective directors, on managers, members, partners, officers or employees or Affiliates that relate in any way to this Agreement or the other handtransactions contemplated hereunder, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, Seller and shall be controlled solely by the Sponsor Seller and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor either Purchaser or any of its Affiliates Affiliates. Accordingly, the Purchasers shall not have access to any such communications, or to the files of Seller Counsel relating to its engagement, whether or not the Closing shall have occurred. Notwithstanding those efforts, each Purchaser, on its behalf and on behalf of its Affiliates, further understands and agrees that the consummation of the transactions contemplated hereunder may result in the inadvertent disclosure of such information that may be confidential or subject to a claim of privilege. Each Purchaser, on its behalf and on behalf of its Affiliates, further understands and agrees that any disclosure of such information that may be confidential or subject to a claim of privilege will not prejudice or otherwise constitute a waiver of any applicable privileges or protections that can or may be asserted to prevent disclosure claim of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companiesprivilege. Each Purchaser, on the one handits behalf and on behalf of its Affiliates, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree agrees to use all commercially reasonable efforts to assist therewith.
(d) To return promptly any such inadvertently disclosed information to the extent that files or other materials maintained by Prior SPAC Counsel constitute property appropriate Person upon becoming aware of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty existence. Each Purchaser agrees to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one handtake, and SPACto cause its Affiliates to take, PubCo or any Quantisimo Companies after all steps necessary to implement the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation intent of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingSection.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Each of the parties hereto acknowledges and agrees that ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇, P.C. (“▇▇▇▇▇▇▇”) has acted as counsel to the Acquired Companies and the Company Sellers in connection with the negotiation of this Agreement and consummation of the Transactions. The Purchaser hereby consents and agrees to, and agrees to cause the Acquired Companies to consent and agree thatto, in ▇▇▇▇▇▇▇ representing the event a dispute Sellers after the Closing, including with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor disputes in such dispute even though which the interests of Sponsor the Sellers may be directly adverse to SPACthe Purchaser and its Affiliates (including the Acquired Companies), and even though such counsel ▇▇▇▇▇▇▇ may have represented SPAC the Acquired Companies in a matter substantially related to any such dispute, or may be handling ongoing matters for SPAC and/or Sponsorthe Acquired Companies. All communication between or among Prior SPAC Counsel, on the one handThe Purchaser further consents and agrees to, and SPAC or Sponsor, on agrees to cause the other hand, shall remain privileged after the Closing Acquired Companies to consent and the privilege and the expectation of client confidence relating thereto shall belong solely agree to the Sponsor, shall be controlled communication by ▇▇▇▇▇▇▇ to the Sponsor and shall not pass Sellers in connection with any such representation of any fact known to or be claimed ▇▇▇▇▇▇▇ arising by Company, SPAC, PubCo or reason of ▇▇▇▇▇▇▇’▇ prior representation of the Surviving Corporation following the ClosingAcquired Companies. Notwithstanding In connection with the foregoing, the Purchaser hereby irrevocably waives and agrees not to assert, and agrees to cause the Acquired Companies to irrevocably waive and not to assert, any privileged communications conflict of interest arising from or information shared by in connection with (i) ▇▇▇▇▇▇▇’▇ prior representation of the Company Acquired Companies and (ii) ▇▇▇▇▇▇▇’▇ representation of the Sellers prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following and after the Closing.
(b) The Company Purchaser further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Acquired Companies, that all communications in any form or format whatsoever between or among ▇▇▇▇▇▇▇, on the one hand, and the Acquired Companies, the Sellers, any of Prior SPAC Counsel, SPAC or the Sponsortheir Subsidiaries, or any of their respective Representatives directors, managers, officers, employees or other representatives, on the other hand, that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, or any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsorthe Sellers, shall be controlled by Sponsor the Sellers, and shall not pass to or be claimed by SPACthe Purchaser, PubCo the Acquired Companies or the Quantisimo Companies after the Closingany of their Subsidiaries. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in Sellers. In the event that a dispute arises between SPAC, PubCo the Purchaser or the Quantisimo Acquired Companies, on the one hand, and a third party other than Sponsora Seller, on the other hand, the Sponsor Purchaser or the Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies and may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSellers. In the event that SPACthe Purchaser, PubCo the Company or the Quantisimo Companies any of their Subsidiaries is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo the Purchaser shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof immediately notify Sponsor the Sellers’ Representative in writing (including by making specific reference to this Section 11.18) so that Sponsor the Sellers’ Representative can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree Purchaser agrees to use all commercially reasonable efforts to assist therewith.
(d) . To the extent that files or other materials maintained by Prior SPAC Counsel ▇▇▇▇▇▇▇ constitute property of its clients, only Sponsor the Sellers shall hold such property rights and Prior SPAC Counsel ▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel▇▇▇▇▇▇▇, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the ClosingCompany, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) hand. The Company Purchaser agrees on behalf of itself that it will not, and SPAC, PubCo and that it will cause the Quantisimo Acquired Companies after the Closingnot to, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company the Sellers waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo the Purchaser or the Quantisimo Acquired Companies after the Closing has have the right to waive the attorney-client or other privilege and or (iiiii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party▇▇▇▇▇▇▇.
(fc) Each In furtherance of the parties hereto acknowledges and foregoing, it shall not be a breach of any provision of this Agreement if, prior to the Closing, the Sellers, the Acquired Companies or any of their Subsidiaries, or any of their respective directors, managers, officers, employees or other Representatives takes any action to protect from access or remove from the premises of the Acquired Companies (or any offsite back-up or other facilities) any Deal Communications, including by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications. In the event that any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by the Purchaser, the Acquired Companies or any of their Subsidiaries (each, a “Residual Communication”), the Purchaser agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to it will not, and that it will cause the Company in various matters involving a range of issues Acquired Companies, and as counsel to the Company in connection with the negotiation of this Agreementtheir respective directors, the Ancillary Agreements and the Transactions. In connection with any matter managers, officers, employees or dispute under this Agreement, SPAC hereby irrevocably waives and agrees other representatives not to assert use or attempt to use any conflict of interest arising from means to access, retrieve, restore, recreate, unarchive or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of otherwise gain access to or view any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingResidual Communication for any purpose.
Appears in 1 contract
Conflicts and Privilege. Buyer and the Company agree that, notwithstanding any current or prior representation of the Company by Stroock & Stroock & ▇▇▇▇▇ LLP (a) SPAC “Stroock”), Stroock shall be allowed to represent Seller or any of its Affiliates in any matters and/or disputes (or any other matter), including in any matter or dispute adverse to Buyer, the Company, or any of their respective Affiliates that either is existing on the date hereof or that arises in the future and relates to this Agreement or any of the other Transaction Documents, or any of the transactions contemplated hereby or thereby, and Buyer and the Company hereby agree (a) waive any claim they have or may have that Stroock has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, in the event that a dispute with respect arises after the Closing relating to this Agreement or the Transactions arises after other Transaction Documents between Buyer, the Closing between Company, or among SPAC and/or Sponsor, any of their respective Affiliates (on the one hand) and Seller, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, or any of its Affiliates (on the other hand), any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) Stroock may represent Sponsor Seller or such Affiliate in such dispute even though the interests of Sponsor Seller or such Affiliate may be directly adverse to SPACBuyer, the Company, or any of their respective Affiliates and even though such counsel Stroock may have represented SPAC the Company in a matter substantially related to such dispute. Buyer and the Company also further agree that, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or as to all communications among Prior SPAC CounselStroock and the Company, on the one handSeller, and SPAC or Sponsortheir respective Affiliates that relate in any way to the transactions contemplated by the Transaction Documents, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, Seller and shall be controlled by the Sponsor Seller and shall not pass to or be claimed by Company, SPAC, PubCo Buyer or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises after the Closing between SPAC, PubCo Buyer or the Quantisimo Companies, Company (on the one hand, ) and a third party other than Sponsor, (on the other hand), other than a party to this Agreement, the Sponsor Company may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by Stroock to such third partyparty and/or may require Seller to assert such privilege; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies Company may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSeller.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Rti International Metals Inc)
Conflicts and Privilege. (a) SPAC Each of the parties hereto acknowledges and agrees, on its own behalf and on behalf of its Representatives and Affiliates, that:
(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP has acted as counsel to Transferor and the Company hereby agree Acquired Companies and their Representatives and Affiliates, in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. Parent and Acquiror agree, and shall cause the Acquired Companies to agree, that, following consummation of the transactions contemplated hereby, such representation and any prior representation of the Acquired Companies by ▇▇▇▇▇▇ & Whitney LLP shall not preclude ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (or any successor) from serving as counsel to the Transferor and its Representatives and Affiliates (other than the Acquired Companies) in the event a dispute connection with respect any litigation, claim or obligation arising out of or relating to this Agreement or the Transactions arises after transactions contemplated hereby; and
(ii) Parent and Acquiror shall not, and shall cause the Closing Acquired Companies not to, seek or have ▇▇▇▇▇▇ & Whitney LLP (or any successor) disqualified from any such representation based on the prior representation of the Acquired Companies by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP. Each of the Parties hereby consents thereto and waives any conflict of interest arising from such prior representation, and each of such Parties shall cause any of its Affiliates to consent to waive any conflict of interest arising from such representation. Each of the Parties acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that the Parties have consulted with counsel or have been advised they should do so in connection herewith. The covenants, consent and waiver contained in this Section 7.17(a) shall not be deemed exclusive of any other rights to which ▇▇▇▇▇▇ & Whitney LLP (or any successor) is entitled whether pursuant to law, contract or otherwise.
(b) All communications between or among SPAC and/or Sponsorthe Transferor, Acquired Companies and their Representatives and Affiliates, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior relating to the Closing negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (the “Prior SPAC CounselPrivileged Communications”) may represent Sponsor in such dispute even though the interests of Sponsor may shall be directly adverse deemed to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain attorney-client privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor Transferor and shall not pass to or be claimed by CompanyParent, SPAC, PubCo Acquiror or the Surviving Corporation following Acquired Companies. Accordingly, Parent, Acquiror and the ClosingAcquired Companies shall not have access to any Privileged Communications or to the files of ▇▇▇▇▇▇ & Whitney LLP (or any successor) relating to such engagement from and after the Closing and may not use or rely on any Privileged Communications in any claim, dispute, action, suit or proceeding against or involving Transferor or the Stockholders or their respective Representatives and successors. Notwithstanding Without limiting the generality of the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, from and after the Closing, on behalf of SPAC(i) Transferor (and not Parent, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC Acquiror or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”Acquired Companies) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation sole holders of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent such engagement, and none of the Sponsor. In the event that SPACParent, PubCo Acquiror or the Quantisimo Acquired Companies is legally required by Governmental Order or otherwise shall be a holder thereof, (ii) to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (or other materials maintained by Prior SPAC Counsel any successor) in respect of such engagement constitute property of its clientsthe client, only Sponsor Transferor (and not Parent, Acquiror or the Acquired Companies) shall hold such property rights and Prior SPAC Counsel (iii) ▇▇▇▇▇▇ & Whitney LLP (or any successor) shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Parent, Acquiror or other materials or any Privileged SPAC Deal Communications the Acquired Companies by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or among ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (or any Quantisimo successor) and any Acquired Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third partyotherwise.
(ec) The Company agrees on behalf of itself This Section 7.17 is intended for the benefit of, and SPACshall be enforceable by, PubCo and the Quantisimo Companies after the Closing, ▇▇▇▇▇▇ & Whitney LLP (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Personsuccessor). This Section 7.17 shall be irrevocable, and no term of the privileges or protections described in this Section 11.187.17 may be amended, and (b) neither SPACwaived or modified, PubCo nor without the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation prior written consent of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Reorganization and Acquisition Agreement (22nd Century Group, Inc.)
Conflicts and Privilege. (a) SPAC Recognizing that K&L Gates LLP has acted as legal counsel to Signing Sellers and the Company Acquired Entities prior to and as of the date of this Agreement and that K&L Gates LLP may be asked to act as legal counsel to Signing Sellers (or “Replacement Seller” or “Replacement Sellers,” if applicable) after the date of this Agreement, the Parties acknowledge that the Acquired Entities have waived, on their own behalf, and Purchaser hereby agree waives, any conflicts that may arise in connection with K&L Gates LLP’s representation of Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable) after the Closing. The Parties also acknowledge that the Acquired Entities have agreed, and Purchaser also agrees, that, in the event a dispute with respect as to this Agreement or the Transactions arises after the Closing between or all communications among SPAC and/or SponsorK&L Gates LLP, on the one hand, and the CompanyAcquired Entities (or any of them), PubCothe Signing Sellers (or any of them), SPAC Merger Sub, Target Merger Subor the Acquired Entities and Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), on the other hand, that relate in any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior way to this Agreement and to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially transactions under or related to such disputethis Agreement and are in fact subject to attorney-client privilege, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely to the SponsorSigning Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), shall be owned and controlled by the Sponsor Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), and shall not pass to or be claimed by Company, SPAC, PubCo Purchaser or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared Acquired Entities nor be retained by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingAcquired Entities.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Enviva Partners, LP)
Conflicts and Privilege. (a) SPAC Each of the parties hereto, on its own behalf and the Company on behalf of its Affiliates from time to time, hereby agree agrees that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the Sponsor, the shareholders or holders of other Equity Interests of SPAC and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Group”), on the one hand, and (y) the Company, Company or PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel counsel, including Celine & Partners PLLC (including DLA Piper LLP) “CCP”), that represented SPAC and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the SPAC Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Company or PubCo, and even though such counsel may have represented the SPAC Group and/or PubCo in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC PubCo, the Company and/or the Sponsor. All communication The parties hereto, on behalf of their respective successors and assigns (including, after the Closing, PubCo), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Additional Agreements or the transactions contemplated hereby or thereby) between or among Prior SPAC, the Sponsor and/or any other member of the SPAC CounselGroup, on the one hand, and SPAC or SponsorCCP, on the other hand, shall remain privileged after the Closing attorney-client privilege, attorney work-product protection and the privilege and the expectation of client confidence relating thereto with respect to such communications shall survive the Closing and shall belong solely exclusively to the Sponsor, shall and be controlled by the Sponsor SPAC Group, and neither PubCo, the Company nor any Person acting on behalf of either of them shall not pass have any right to access, use or be claimed by Company, SPAC, PubCo waive such privilege or the Surviving Corporation following the Closingprotection. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingCompany.
(b) The Company further agreesEach of the parties hereto, on its own behalf and on behalf of itself andits Affiliates and their respective successors and assigns (including, after following the Closing, on behalf of SPACPubCo), PubCo and hereby agrees that, in the Quantisimo Companiesevent a dispute with respect to this Agreement, that all communications in any form Additional Agreement or format whatsoever the Transactions arises after the Closing between or among any (x) the stockholders or other holders of Prior SPAC Counsel, SPAC or Equity Interests of the Sponsor, or Company and/or any of their respective Representatives that relate in any way to the negotiationdirectors, documentation and consummation of the Transactions ormembers, beginning on the date of this Agreementpartners, any dispute arising under this Agreement officers, employees or Affiliates (collectively, the “SPAC Deal CommunicationsCompany Group”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies), on the one hand, and a third party other than Sponsor(y) PubCo, the Company, the SPAC Group or any of their respective Affiliates, on the other hand, any legal counsel, including W▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP (“Company Counsel”), that represented the Sponsor may assert the attorney-client privilege to prevent the disclosure Company and/or any member of the Privileged Company Group prior to the Closing may represent any member of the Company Group in such dispute, notwithstanding that the interests of such Persons may be directly adverse to PubCo, the Company, the SPAC Deal Communications Group or any of their respective Affiliates, and notwithstanding that such counsel may have represented the Company in a matter substantially related to such third party; provideddispute. The parties hereto, howeveron behalf of their respective Affiliates and successors and assigns (including, that neither SPACfollowing the Closing, PubCo), nor further agree that, as to all legally privileged communications made prior to the Quantisimo Companies may waive such privilege Closing in connection with respect to Privileged SPAC Deal Communications without the prior written consent negotiation, preparation, execution, delivery or performance of this Agreement or any Additional Agreement or the consummation of the Sponsor. In the event that SPAC, PubCo Transactions between or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion among any member of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC CounselCompany Group, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the ClosingCompany Counsel, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAChand, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or and expectation of client confidence applicable with respect to such communications shall survive the Closing and shall belong exclusively to and be controlled by the Company Group, and neither PubCo, the Company nor any Person acting on behalf of either of them shall have any right to access, use or waive such materials privilege or communicationsprotection. Notwithstanding the foregoing, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, privileged communications or other information, information shared by SPAC or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, SPAC Group with the “Company Advised Parties”) or any member of the Company Group pursuant to a common interest or joint defense agreement shall remain subject to the applicable privilege or protection and shall not be used or disclosed by the Company Group without the prior to and after written consent of SPAC or the Closingapplicable member of the SPAC Group.
Appears in 1 contract
Sources: Business Combination Agreement (FortuneX Acquisition Corp)
Conflicts and Privilege. Each of the Parties hereto acknowledges and agrees that ▇▇▇▇▇▇▇ Procter LLP (a“▇▇▇▇▇▇▇”) SPAC has acted as counsel to the Company Entities, their Subsidiaries and the Seller in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby. The Purchaser hereby consents and agrees to, and irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with, and agrees to cause the Company hereby Entities and their Subsidiaries to consent and agree thatto and irrevocably waive and not assert any conflict of interest arising from or in connection with, in ▇▇▇▇▇▇▇ representing the event a dispute Seller after the Closing, including with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor disputes in such dispute even though which the interests of Sponsor the Seller may be directly adverse to SPAC, the Purchaser and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by its Affiliates (including the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) Entities and their Subsidiaries). The Company Purchaser further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo the Company Entities and the Quantisimo Companiestheir Subsidiaries, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel▇▇▇▇▇▇▇, SPAC or the SponsorSeller, the Company Entities and/or any of their Subsidiaries, or any of their respective Representatives directors, officers, employees or other representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Transaction (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by SponsorSeller, shall be controlled by Sponsor Seller, and shall not pass to or be claimed by SPACthe Purchaser, PubCo the Company Entities or the Quantisimo Companies after the Closingany of their Subsidiaries. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to SponsorSeller, shall be controlled by Sponsor Seller and shall not pass to or be claimed by SPACPurchaser, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor Company Entities or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) their Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between SPACthe Purchaser, PubCo any Company Entity or the Quantisimo Companiesa Subsidiary, on the one hand, and a third party other than Sponsorthe Seller, on the other hand, the Sponsor Purchaser, the Company Entities or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPACnone of the Purchaser, PubCo, nor the Quantisimo Companies Company Entities or any Subsidiary may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSeller. In the event that SPACthe Purchaser, PubCo any Company Entity or the Quantisimo Companies any of their Subsidiaries is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo the Purchaser shall as promptly as practicable (and, in any event, within two five (25) Business Days) after becoming aware thereof notify Sponsor Seller in writing (including by making specific reference to this Section 11.18Section) so that Sponsor Seller can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree Purchaser agrees to use all commercially reasonable efforts (at the sole expense of Seller) to assist therewith.
(d) . To the extent that files or other materials maintained by Prior SPAC Counsel ▇▇▇▇▇▇▇ constitute property of its clients, only Sponsor Seller shall hold such property rights and Prior SPAC Counsel ▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel▇▇▇▇▇▇▇, on the one hand, and SPAC, PubCo any Company Entity or any Quantisimo Companies after the Closingits Subsidiaries, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) hand. The Purchaser agrees that it will not, and that it will cause the Company agrees on behalf of itself Entities and SPAC, PubCo and the Quantisimo Companies after the Closingtheir Subsidiaries not to, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to intentionally access or use the SPAC Privileged Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company Seller waive the attorney-client or other privilege, or by otherwise asserting that SPACthe Purchaser, PubCo any Company Entity or any of the Quantisimo Companies after the Closing Company Entities’ Subsidiaries has the right to waive the attorney-client or other privilege and or (iiiii) not to seek to obtain the SPAC Privileged Deal Communications from Prior SPAC Counsel so long ▇▇▇▇▇▇▇. Notwithstanding the foregoing, Purchaser shall not be in breach of this Agreement solely as such SPAC a result of inadvertent access to any Privileged Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto Communications. Seller acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted agree that, except as counsel otherwise set forth above relating to the Privileged Deal Communications, all other confidential and privileged information relating to the Company in various matters involving a range of issues Entities and as counsel its Subsidiaries belong to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements Entities and the Transactions. In connection with any matter or dispute under this AgreementSubsidiaries and, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing, Purchaser shall have full rights with respect thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (CEB Inc.)
Conflicts and Privilege. (a) SPAC Acquiror, the Company, PubCo and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Company Amalgamation Closing, the Surviving Corporation), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Amalgamation Closing between or among SPAC (x) the Sponsor, the shareholders or holders of other equity interests of Acquiror or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Corporation) (collectively, the “Bridgetown 2 Group”), on the one hand, and (y) the Company, PubCo, SPAC Merger Sub, Target Merger SubSurviving Corporation and/or any member of the PropertyGuru Group, on the other hand, any legal counsel counsel, including Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (including DLA Piper LLP) “Skadden”), that represented SPAC Acquiror and/or the Sponsor prior to the Amalgamation Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the Bridgetown 2 Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Corporation, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Corporation and/or the Sponsor. All communication Acquiror, the Company and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Amalgamation Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Amalgamation Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselAcquiror, the Sponsor and/or any other member of the Bridgetown 2 Group, on the one hand, and SPAC or SponsorSkadden, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorBridgetown 2 Group after the Amalgamation Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company or Amalgamation Sub prior to the Amalgamation Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingCompany.
(b) The Acquiror, the Company further agreesand Amalgamation Sub, on behalf of itself andtheir respective successors and assigns (including, after the Amalgamation Closing, on behalf of SPACthe Surviving Corporation), PubCo and hereby agree that, in the Quantisimo Companies, that all communications in any form event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Amalgamation Closing between or among any (x) the shareholders or holders of Prior SPAC Counselother equity interests of the Company, SPAC or the Sponsor, or Amalgamation Sub and/or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsPropertyGuru Group”), on the one hand, and (y) the Surviving Corporation and/or any member of the Bridgetown 2 Group, on the other hand, any legal counsel, including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“Latham”), that represented the Company prior to the Amalgamation Closing may represent any member of the PropertyGuru Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Corporation, and even though such counsel may have represented Acquiror, the Company and/or Amalgamation Sub in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Corporation, Acquiror, the Company and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Amalgamation Closing, the Surviving Corporation), and further agree that, as to all legally privileged communications prior to the Amalgamation Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company, Amalgamation Sub and/or any member of the PropertyGuru Group, on the one hand, and ▇▇▇▇▇▇, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe PropertyGuru Group after the Amalgamation Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Surviving Corporation. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror prior to the event that Amalgamation Closing with the Company under a dispute arises between SPAC, PubCo common interest agreement shall remain the privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (PropertyGuru Group LTD)
Conflicts and Privilege. (a) SPAC The Parties, on behalf of their respective successors and assigns (including, after the Company Amalgamation Effective Time, the Amalgamated Company), hereby agree that, in the event a dispute with respect to this Agreement Agreement, any other Transaction Document or the Transactions arises after the Closing Amalgamation Effective Time between or among SPAC (x) the Sponsor, the shareholders or holders of other Equity Securities of Parent or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Amalgamated Company) (collectively, the “Parent Group”), on the one hand, and (y) the Company, PubCo, SPAC Merger Sub, Target Merger SubAmalgamated Company and/or any member of the Company Group, on the other hand, any legal counsel counsel, including Shearman & Sterling LLP (including DLA Piper LLP) “Shearman”), that represented SPAC Parent and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) Amalgamation Effective Time may represent the Sponsor and/or any other member of the Parent Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Amalgamated Company, and even though such counsel may have represented SPAC Parent in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Amalgamated Company and/or the Sponsor. All communication The Parties, on behalf of their respective successors and assigns (including, after the Amalgamation Effective Time, the Amalgamated Company), further agree that, as to all legally privileged communications prior to the Amalgamation Effective Time (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Document or the Transactions) between or among Prior SPAC CounselParent, the Sponsor and/or any other member of the Parent Group, on the one hand, and SPAC or SponsorShearman, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Amalgamation and belong solely to the SponsorParent Group after the Amalgamation Effective Time, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by the Amalgamated Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company Group Companies prior to the Closing Amalgamation Effective Time with SPAC Parent, Amalgamation Sub or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closingapplicable Group Company.
(b) The Company further agreesParties, on behalf of itself andtheir respective successors and assigns (including, after the ClosingAmalgamation Effective Time, on behalf of SPACthe Amalgamated Company), PubCo and hereby agree that, in the Quantisimo Companiesevent a dispute with respect to this Agreement, that all communications in any form the other Transaction Documents or format whatsoever the Transactions arises after the Amalgamation Effective Time between or among (x) the shareholders or holders of other Equity Securities of any of Prior SPAC Counselthe Group Companies, SPAC or the Sponsor, or Sole Shareholder and/or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (including the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Amalgamated Company) (collectively, the “SPAC Deal CommunicationsCompany Group”), on the one hand, and (y) any member of the Parent Group, on the other hand, any legal counsel, including ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP (“▇▇▇▇▇▇ ▇▇▇▇”), that represented any of the Group Companies or the Sole Shareholder prior to the Amalgamation Effective Time may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Amalgamated Company, and even though such counsel may have represented the Group Companies and/or the Sole Shareholder in a matter substantially related to such dispute, or may be handling ongoing matters for the Amalgamated Company, the Group Companies and the Sole Shareholder, on behalf of their respective successors and assigns (including, after the Amalgamation Effective Time, the Amalgamated Company), and further agree that, as to all legally privileged communications prior to the Amalgamation Effective Time (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the Transactions) between or among the Group Companies, the Sole Shareholder and/or any member of the Company Group, on the one hand, and ▇▇▇▇▇▇ ▇▇▇▇, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Amalgamation and belong to be retained and owned collectively by Sponsorthe Company Group after the Amalgamation Effective Time, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Amalgamated Company. Notwithstanding the foregoing, in any privileged communications or information shared by Parent or Amalgamation Sub prior to the event that a dispute arises between SPAC, PubCo Amalgamation Effective Time with the Group Companies or the Quantisimo Companies, on the one hand, and Sole Shareholder under a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege common interest agreement shall belong to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Worldwide Webb Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Company hereby The Parties agree that, notwithstanding the fact that Celine & Partners, PLLC (“Celine”) may have, prior to Initial Closing, jointly represented SPAC and Sponsor in connection with this Agreement, other Transaction Documents and the Transactions, and has also represented SPAC, Sponsor and/or their respective Affiliates in connection with matters other than the transaction that is the subject of this Agreement, Celine will be permitted in the event a dispute future, after the Initial Closing, to represent Sponsor or its Affiliates in connection with respect matters in which such Persons are adverse to PubCo, the Surviving Company or any of their respective Affiliates, including any disputes arising out of, or related to, this Agreement. The Company, PubCo, and the Merger Subs hereby agree, in advance, to waive (and to cause their Affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with C▇▇▇▇▇’s future representation of one or more of Sponsor or its Affiliates in which the interests of such Person are adverse to the interests of PubCo, Surviving Company, Surviving Corporation, and/or the Company or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or the Transactions arises after the Closing between or among SPAC and/or to any prior representation by Celine of Sponsor, on SPAC or any of their respective Affiliates. The parties acknowledge and agree that, for the one handpurposes of the attorney-client privilege, Sponsor shall be deemed the client of Celine with respect to the negotiation, execution and performance of this Agreement and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or SponsorTransaction Documents. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Initial Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the ClosingSurviving Company; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor PubCo, Surviving Company or any of its their respective Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Quetta Acquisition Corp)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Sellers’ Representative has retained D▇▇▇▇ ▇▇▇▇▇▇ LLP (a“DM”) SPAC and to act as its counsel in connection with the Company transactions contemplated hereby. Buyer hereby agree that, agrees that in the event of a dispute with respect under this Agreement, the Ancillary Documents and the documents and instruments contemplated hereby and thereby related to this Agreement the transactions contemplated hereby or the Transactions thereby that arises after the Closing between or among SPAC and/or SponsorBuyer Indemnified Parties, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSellers’ Representative and Sellers, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) DM may represent Sponsor the Sellers’ Representative and/or Sellers in such dispute even though the interests of Sponsor the Sellers’ Representative and/or Sellers may be directly adverse to SPACthe Buyer Indemnified Parties, and even though such counsel DM may have represented SPAC the Company in a matter substantially related to such dispute; provided, however, this sentence shall not apply if and to the extent (a) DM is then representing the Buyer Indemnified Parties and (b) such representation of such member of the Buyer Indemnified Parties would require DM to either refrain from representing the Sellers’ Representative and/or Sellers or may be handling ongoing matters for SPAC obtain the informed consent of the Sellers’ Representative and/or SponsorSellers and the applicable member of the Buyer Indemnified Parties under applicable Laws or applicable ethical standards governing attorney conduct. All communication between Buyer further agrees that, as to all communications among DM, the Company, the Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated hereby or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after a similar transaction prior to the Closing and (the “Protected Communications”), the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely with respect to the Sponsor, shall Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Sponsor Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Company (after Closing) or any of their Subsidiaries; provided, however, the parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among DM, the Company, SPAC, PubCo the Sellers’ Representative and/or any Seller: (i) relating to (A) the pre-Closing operation by the Company of its business other than the negotiation of the transactions contemplated hereby or a similar transaction prior to the Surviving Corporation following Closing or (B) Fraud (whether related to the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or otherwise); or (ii) with respect to which the attorney-client privilege could not validly be asserted by the Company prior to the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacityx) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo CompaniesBuyer Indemnified Parties, on the one hand, and a third party other than Sponsorthe Sellers’ Representative or a Seller, on the other hand, the Sponsor Buyer Indemnified Parties may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies Buyer Indemnified Parties may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies Sellers’ Representative and (y) if Buyer is legally required by order of a Governmental Order or otherwise Authority to access or obtain a copy of all or a portion of the Privileged SPAC Deal Protected Communications, PubCo Buyer shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference be entitled to this Section 11.18) so that Sponsor can seek access or obtain a protective order copy of and SPAC, PubCo and disclose the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Protected Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable necessary to comply with any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third partyorder.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Treasure Finders, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Sellers’ Representative has retained ▇▇▇▇▇ ▇▇▇▇▇▇ LLP (a“DM”) SPAC and to act as its counsel in connection with the Company transactions contemplated hereby. Buyer hereby agree that, agrees that in the event of a dispute with respect under this Agreement, the Ancillary Documents and the documents and instruments contemplated hereby and thereby related to this Agreement the transactions contemplated hereby or the Transactions thereby that arises after the Closing between or among SPAC and/or SponsorBuyer Indemnified Parties, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSellers’ Representative and Sellers, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) DM may represent Sponsor the Sellers’ Representative and/or Sellers in such dispute even though the interests of Sponsor the Sellers’ Representative and/or Sellers may be directly adverse to SPACthe Buyer Indemnified Parties, and even though such counsel DM may have represented SPAC the Company in a matter substantially related to such dispute; provided, however, this sentence shall not apply if and to the extent (a) DM is then representing the Buyer Indemnified Parties and (b) such representation of such member of the Buyer Indemnified Parties would require DM to either refrain from representing the Sellers’ Representative and/or Sellers or may be handling ongoing matters for SPAC obtain the informed consent of the Sellers’ Representative and/or SponsorSellers and the applicable member of the Buyer Indemnified Parties under applicable Laws or applicable ethical standards governing attorney conduct. All communication between Buyer further agrees that, as to all communications among DM, the Company, the Sellers’ Representative and/or any Seller that relate in any way to the transactions contemplated hereby or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after a similar transaction prior to the Closing and (the “Protected Communications”), the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely with respect to the Sponsor, shall Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by the Sponsor Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Company (after Closing) or any of their Subsidiaries; provided, however, the parties hereto expressly agree that the Protected Communications and Associated Rights shall not include any communications at or prior to the Closing among DM, the Company, SPAC, PubCo the Sellers’ Representative and/or any Seller: (i) relating to (A) the pre-Closing operation by the Company of its business other than the negotiation of the transactions contemplated hereby or a similar transaction prior to the Surviving Corporation following Closing or (B) Fraud (whether related to the negotiation of the transactions contemplated hereby or a similar transaction prior to the Closing or otherwise); or (ii) with respect to which the attorney-client privilege could not validly be asserted by the Company prior to the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacityx) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo CompaniesBuyer Indemnified Parties, on the one hand, and a third party other than Sponsorthe Sellers’ Representative or a Seller, on the other hand, the Sponsor Buyer Indemnified Parties may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies Buyer Indemnified Parties may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies Sellers’ Representative and (y) if Buyer is legally required by order of a Governmental Order or otherwise Authority to access or obtain a copy of all or a portion of the Privileged SPAC Deal Protected Communications, PubCo Buyer shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference be entitled to this Section 11.18) so that Sponsor can seek access or obtain a protective order copy of and SPAC, PubCo and disclose the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Protected Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable necessary to comply with any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third partyorder.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Company hereby The parties agree that, notwithstanding the fact that C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP (the “Company Law Firm”) has, prior to the Closing, represented Company and Parent in connection with this Agreement, the Transaction Documents and the Transactions, and have also represented Company and/or its affiliates in connection with matters other than the Transactions, the Company Law Firm will be permitted in the event a dispute future, after the Closing, to represent Parent or its affiliates in connection with respect matters in which such persons are adverse to Company or any of its affiliates, including any disputes arising out of, or related to, this Agreement. SPAC, who is or has the right to be represented by independent counsel in connection with the Transactions, hereby agrees, in advance, to waive (and to cause its affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with the Company Law Firm’s future representation of Parent or its respective affiliates in which the interests of such person are adverse to the interests of SPAC and/or Company or any of their respective affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company Law Firm of Company, PubCoParent or any of their respective affiliates. The parties acknowledge and agree that, SPAC Merger Subfor the purposes of the attorney-client privilege, Target Merger Sub, on Parent shall be deemed the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior client of the Company Law Firm with respect to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though negotiation, execution and performance of the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or SponsorTransaction Documents. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the SponsorParent, shall be controlled by the Sponsor Parent and shall not pass to or be claimed by Company, SPAC, PubCo SPAC or Company or the Surviving Corporation following Company Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by Company or any of its affiliates (including, after the Closing. Notwithstanding the foregoing, SPAC and their its affiliates) of any privileged applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closingthird party.
(b) The Company further agreesparties agree that, on behalf of itself andnotwithstanding the fact that A▇▇▇▇ ▇▇▇▇▇ S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP (the “SPAC Law Firm”) prior to the Closing, represented SPAC or Sponsor in connection with this Agreement, the Transaction Documents and the Transactions, and have also represented SPAC and/or its affiliates in connection with matters other than the Transactions, the SPAC Law Firm will be permitted in the future, after the Closing, on behalf of SPACto represent Sponsor, PubCo and the Quantisimo Companies, that all communications Energy Growth Holdings LLC or their respective affiliates in any form connection with matters in which such persons are adverse to SPAC or format whatsoever between or among any of Prior its affiliates, including any disputes arising out of, or related to, this Agreement. Each of Company and Parent, who is or has the right to be represented by independent counsel in connection with the Transactions, hereby agrees, in advance, to waive (and to cause its affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with SPAC Counsel, SPAC Law Firm’s future representation of one or more of the Sponsor, Energy Growth Holdings LLC or their respective affiliates in which the interests of such person are adverse to the interests of SPAC and/or Company or any of their respective Representatives affiliates, including any matters that relate in arise out of this Agreement or that are substantially related to this Agreement or to any way prior representation by the SPAC Law Firm of SPAC, Sponsor or any of their respective affiliates. The parties acknowledge and agree that, for the purposes of the attorney-client privilege, Sponsor and Energy Growth Holdings LLC shall be deemed the clients of the SPAC Law Firm with respect to the negotiation, documentation execution and consummation performance of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the ClosingTransaction Documents. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo SPAC or Company or the Quantisimo Companies after the ClosingCompany Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor SPAC or any of its Affiliates affiliates (including, after the Closing, Company and its respective affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party. [Signature Page Follows.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.]
Appears in 1 contract
Sources: Business Combination Agreement (EGH Acquisition Corp.)
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that the Securityholder Representative has retained G▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“G▇▇▇▇▇▇”) to act as its counsel in connection with the Transactions. Parent and the Company Merger Sub hereby agree that, that in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Parent or among SPAC and/or Sponsorany of its Subsidiaries (including the Surviving Corporation and its Subsidiaries), on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSecurityholder Representative or any of the Company Securityholders, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) G▇▇▇▇▇▇ may represent Sponsor the Securityholder Representative or Company Securityholders in such dispute even though the interests of Sponsor the Securityholder Representative or Company Securityholders may be directly adverse to SPACParent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries), and even though such counsel G▇▇▇▇▇▇ may have represented SPAC a member of the Company Group in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication the Surviving Corporation or its Subsidiaries.
(b) Parent and M▇▇▇▇▇ Sub further agree that, as to all communications between or among Prior SPAC CounselG▇▇▇▇▇▇, on the one handCompany, the Securityholder Representative or any Company Securityholder that relate in any way to the Transactions, and SPAC with respect to which the attorney-client privilege and any other rights to any evidentiary privilege have attached as a result of the Transactions or Sponsora similar transaction (the “Privileged Transaction Communications”), on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Securityholder Representative and the Company Securityholders and may be controlled by the Sponsor Securityholder Representative and Company Securityholders and shall not pass to or be claimed by CompanyParent, SPACMerger Sub, PubCo the Surviving Corporation or any of its Subsidiaries. Absent the consent of the Securityholder Representative, neither Parent nor the Surviving Corporation shall have a right to access the Privileged Transaction Communications following the Closing and, in the event Parent or the Surviving Corporation following inadvertently access Privileged Transaction Communications, such access will not waive or otherwise affect the Closingrights of the Securityholder Representative with respect to the related privilege or protection. Notwithstanding the foregoing, any privileged communications or information shared by Parent, the Company prior Surviving Corporation and their Subsidiaries shall be entitled to access and use Privileged Transaction Communications to the Closing extent reasonably necessary to defend or respond to any Third Party Claim. In the event such access is provided in connection with SPAC or Sponsor a Third Party Claim (in any capacityi) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo Parent and the Quantisimo CompaniesSurviving Corporation, and the Securityholder Representative, hereby agree that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal such Privileged Transaction Communications that are accessed pursuant to this Section 8.18 shall be protected by the attorney-client privileged privilege, the attorney work-product privilege and a joint defense privilege, (the “Privileged SPAC Deal Communications”ii) shall remain privileged after the Closing Parent and the privilege Surviving Corporation will use their reasonable best efforts to protect any such Privileged Transaction Communications that are shared pursuant to this Section 8.18 from disclosure to third parties, and the expectation (iii) in no circumstances may such Privileged Transaction Communications that are shared pursuant to this Section 8.18 be used in any legal proceeding of client confidence relating thereto shall belong solely to Sponsor, shall be controlled any nature by Sponsor and shall not pass to or be claimed by SPAC, PubCo Parent or the Quantisimo Companies after Surviving Corporation against the ClosingSecurityholder Representative or any Company Securityholder; provided, further, provided that nothing contained herein shall be deemed prohibit Parent, the Surviving Corporation or their Affiliates from using such Privileged Transaction Communications to be a waiver the extent required by the Sponsor Applicable Law or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third partycourt order.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACParent, PubCo the Surviving Corporation or the Quantisimo Companiesany of its Subsidiaries, on the one hand, and a third party other than Sponsorthe Securityholder Representative or a Company Securityholder, on the other hand, Parent, the Sponsor Surviving Corporation or any of its Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Liquidity Services Inc)
Conflicts and Privilege. (a) SPAC Acquiror and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC Acquiror, Merger Sub and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented SPAC Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Acquiror Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror and/or Sponsor. All communication between or among Prior SPAC Acquiror Counsel, on the one hand, and SPAC the Acquiror, Merger Sub or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo the Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Acquiror or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo the Acquiror and the Quantisimo View Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Acquiror Counsel, SPAC the Acquiror, Merger Sub or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo the Acquiror or the Quantisimo View Companies after the Closing. All SPAC Acquiror Deal Communications that are attorney-client privileged (the “Privileged SPAC Acquiror Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo the Acquiror or the Quantisimo View Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo the Acquiror or the Quantisimo View Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Acquiror Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo the Acquiror or the Quantisimo View Companies is legally required by Governmental Order governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Acquiror Deal Communications, PubCo the Acquiror shall as promptly as practicable immediately (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.1810.18) so that Sponsor can seek a protective order and SPAC, PubCo the Acquiror and the Quantisimo View Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Acquiror Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Acquiror Deal Communications by reason of any attorney-client relationship between Prior SPAC Acquiror Counsel, on the one hand, and SPAC, PubCo the Acquiror or any Quantisimo View Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo the Acquiror and the Quantisimo View Companies after the Closing, (i) to the extent that SPAC the Acquiror or, after the Closing, PubCo or the Quantisimo View Companies receives or takes physical possession of any SPAC Acquiror Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.1810.18, and (b) neither SPAC, PubCo the Acquiror nor the Quantisimo View Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo Acquiror or any Quantisimo View Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo the Acquiror or the Quantisimo View Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Acquiror Deal Communications from Prior SPAC Acquiror Counsel so long as such SPAC Acquiror Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties Parties hereto acknowledges and agrees that Rimon P.C. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC the Acquiror hereby irrevocably waives and agrees not to assert assert, and agrees to cause the View Companies after the Closing to irrevocably waive and agree not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo View Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Company ▇▇▇▇▇▇▇ Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or the Surviving Corporation or the Sponsor, on the one hand, and the any ▇▇▇▇▇▇▇ Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, that Shearman & Sterling LLP (or any legal counsel (including DLA Piper LLP) of its successors that represented SPAC and/or or the Sponsor prior to the Closing (“Prior SPAC Counsel”)) may represent the Sponsor in such dispute even though the interests of the Sponsor may be directly adverse to SPACthose of the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or or the Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC the Surviving Corporation or the Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo any ▇▇▇▇▇▇▇ Party or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the any ▇▇▇▇▇▇▇ Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the such ▇▇▇▇▇▇▇ Company following the Closing.
(b) The Company Each of the ▇▇▇▇▇▇▇ Parties further agrees, on behalf of itself andand its Affiliates, that, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation preparation, execution, authorization or performance of this Agreement and the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by SPAC, PubCo any ▇▇▇▇▇▇▇ Company or the Quantisimo Companies Surviving Corporation after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by SPAC, PubCo any ▇▇▇▇▇▇▇ Company or the Quantisimo Companies Surviving Corporation after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo any ▇▇▇▇▇▇▇ Company or the Quantisimo CompaniesSurviving Corporation, on the one hand, and a third party other than the Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, and no ▇▇▇▇▇▇▇ Company nor the Quantisimo Companies Surviving Corporation may waive such privilege with respect to Privileged SPAC Company Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo any ▇▇▇▇▇▇▇ Company or the Quantisimo Companies Surviving Corporation is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall shall, as promptly as practicable (and, in any event, within two (2) Business Days) Days after becoming aware thereof thereof) notify the Sponsor in writing (including by making specific reference to this Section 11.1812.18) so that the Sponsor can seek a protective order and SPACorder; provided, PubCo further, that the ▇▇▇▇▇▇▇ Companies and the Quantisimo Companies Surviving Corporation agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only the Sponsor shall hold such property rights rights, and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo any ▇▇▇▇▇▇▇ Company or any Quantisimo Companies the Surviving Corporation after the Closing, on the other hand hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees ▇▇▇▇▇▇▇ agrees, on behalf of itself and SPAC, PubCo each of the ▇▇▇▇▇▇▇ Companies and the Quantisimo Companies Surviving Corporation after the Closing, (i) to the extent that SPAC or, the Surviving Corporation or any ▇▇▇▇▇▇▇ Company after the Closing, PubCo or the Quantisimo Companies Closing receives or takes physical possession of any SPAC Deal Communications, (aA) such physical possession or receipt shall not, in any way, be deemed a waiver by the Sponsor or any other Person, Person of the privileges or protections described in this Section 11.1812.18, and (bB) neither SPAC, PubCo none of the ▇▇▇▇▇▇▇ Companies nor the Quantisimo Companies Surviving Corporation after the Closing shall assert any claim that the Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo the Surviving Corporation or any Quantisimo ▇▇▇▇▇▇▇ Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo the Surviving Corporation or the Quantisimo Companies any ▇▇▇▇▇▇▇ Company after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto Parties acknowledges and agrees that Rimon P.C. Dechert LLP (“Prior Company Counsel”) has acted as counsel to the Company ▇▇▇▇▇▇▇ Companies in various matters involving a range of issues and as counsel to the Company ▇▇▇▇▇▇▇ Companies in connection with the negotiation negotiation, preparation, execution, authorization or performance of this Agreement, Agreement and the Ancillary Agreements and the consummation of the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company ▇▇▇▇▇▇▇ Companies and (ii) Prior Company Counsel’s representation of any member of the Quantisimo ▇▇▇▇▇▇▇ Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (ExcelFin Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Company Acquisition Entities hereby agree thaton behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “Company Counsel Waiving Parties”), that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇▇▇▇”) and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Carmel LLP (“SRFC”) may represent the equityholders of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (other than SPAC, the Acquisition Entities or their respective Subsidiaries) (collectively, the “Company Counsel WP Group”), in the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement Agreement, any Ancillary Document or the Transactions arises after contemplated hereby or thereby, notwithstanding its prior representation of the Closing Company and its Subsidiaries or other Company Counsel Waiving Parties, and each of SPAC, the Acquisition Entities and the Company on behalf of itself and the Company Counsel Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to ▇▇▇▇▇▇▇▇▇ or SRFC prior representation of the Company, its Subsidiaries or of Company Counsel Waiving Parties. SPAC, the Acquisition Entities and the Company, for itself and the Company Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or among SPAC and/or Sponsorany member of the Company Counsel WP Group, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Subeach of ▇▇▇▇▇▇▇▇▇ and SRFC, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor made prior to the Closing in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Company following the Closing, and instead survive, remain with and are controlled by the Company Counsel WP Group (the “Company Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Company Counsel Privileged Communications, whether located in the records or email server of the Company and its Subsidiaries, in any Action against or involving any of the parties after the Closing, and SPAC, the Acquisition Entities and the Company agree not to assert that any privilege has been waived as to the Company Counsel Privileged Communications, by virtue of the Transactions.
(b) Each of SPAC, the Acquisition Entities and the Company hereby agrees on behalf of their respective Non-Party Affiliates and each of their respective successors and assigns (all such parties, the “SPAC Counsel Waiving Parties”), that ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“Prior SPAC Counsel▇▇▇▇▇ ▇▇▇▇▇▇▇”) and Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (“Fasken”) may represent Sponsor in such dispute even though the shareholders or holders of other equity interests of the Sponsor may be directly adverse or of SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Counsel WP Group”), in each case, solely in connection with any Action or obligation arising out of or relating to this Agreement, any Ancillary Document or the Transactions contemplated hereby or thereby, notwithstanding its prior representation of SPAC and its Subsidiaries, or other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and even though such counsel may have represented the Company, on behalf of itself and the SPAC in a matter substantially related Counsel Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to such dispute▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ or ▇▇▇▇▇▇’s prior representation of SPAC and its Subsidiaries, or may be handling ongoing matters other SPAC Counsel Waiving Parties. Each of SPAC, the Acquisition Entities and the Company, for itself and the SPAC and/or Sponsor. All communication Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or among Prior its Subsidiaries, or any other member of the SPAC CounselCounsel WP Group, on the one hand, and SPAC or Sponsoreach of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Fasken, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely made prior to the SponsorClosing, shall be controlled by in connection with the Sponsor negotiation, preparation, execution, delivery and shall performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the Transactions contemplated hereby or thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
, and instead survive, remain with and are controlled by the SPAC Counsel WP Group (b) The Company further agreesthe “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Acquisition Entities and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on behalf any of itself andthe SPAC Counsel Privileged Communications, whether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the parties after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo the Acquisition Entities and the Quantisimo Companies Company agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert that any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation privilege has been waived as to the SPAC Counsel Privileged Communications, by virtue of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingTransactions.
Appears in 1 contract
Sources: Business Combination Agreement (Arogo Capital Acquisition Corp.)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger SubSub 1, Target Merger SubSub 2, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Nettar Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Nettar Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Nettar Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Nettar Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, SPAC nor the Quantisimo Nettar Companies may waive such privilege with respect to Privileged SPAC Company Deal Communications without the prior written consent of the SponsorSurviving Corporation. In the event that SPAC, PubCo or the Quantisimo Nettar Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Nettar Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Nettar Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Nettar Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Nettar Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Nettar Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Nettar Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Nettar Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇ Traurig LLP (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Nettar Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC It is acknowledged by each of the parties hereto that the Securityholders’ Representative has retained ▇▇▇▇▇▇▇ to act as its counsel in connection with the Contemplated Transactions. Buyer and the Company Merger Sub hereby agree that, that in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among SPAC and/or Sponsorany of its Subsidiaries (including the Surviving Company and its Subsidiaries), on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSecurityholders’ Representative or any of the Securityholders, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) ▇▇▇▇▇▇▇ may represent Sponsor the Securityholders’ Representative or Securityholders in such dispute even though the interests of Sponsor the Securityholders’ Representative or Securityholders may be directly adverse to SPACBuyer or any of its Subsidiaries (including the Surviving Company and its Subsidiaries), and even though such counsel ▇▇▇▇▇▇▇ may have represented SPAC an Acquired Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication the Surviving Company or its Subsidiaries.
(b) Buyer and ▇▇▇▇▇▇ Sub further agree that, as to all communications between or among Prior SPAC Counsel▇▇▇▇▇▇▇, on the one handCompany, the Securityholders’ Representative or any Securityholder that relate in any way to the Contemplated Transactions or a similar transaction prior to the Closing, and SPAC with respect to which the attorney-client privilege and any other rights to any evidentiary privilege have attached as a result of the Contemplated Transactions or Sponsora similar transaction (the “Privileged Transaction Communications”), on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Securityholders’ Representative and the Securityholders and may be controlled by the Sponsor Securityholders’ Representative and Securityholders and shall not pass to or be claimed by Company▇▇▇▇▇, SPACMerger Sub, PubCo the Surviving Company or any of its Subsidiaries. Absent the consent of the Securityholders’ Representative, neither Buyer nor the Surviving Company shall have a right to access the Privileged Transaction Communications following the Closing and, in the event Buyer or the Surviving Corporation following Company inadvertently access Privileged Transaction Communications, such access will not waive or otherwise affect the Closingrights of the Securityholders’ Representative with respect to the related privilege or protection. Notwithstanding the foregoing, any privileged communications in the event Buyer or information shared by the Surviving Company prior requires access to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company Privileged Transaction Communications following the Closing.
(b) The , Buyer or the Surviving Company further agreesmay make a written request for such access to the Securityholders’ Representative, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo CompaniesSecurityholders’ Representative will not unreasonably withhold, condition, or delay its consent to such access. The Securityholders’ Representative hereby agrees that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC it is reasonable for Buyer or the Sponsor, or any of their respective Representatives that relate in any way Surviving Company to require access to the negotiationPrivileged Transaction Materials if such access is necessary to permit Buyer or the Surviving Company to adequately defend itself from and against any third-party legal proceeding against Buyer or the Surviving Company, documentation but in the event such access is provided (i) Buyer and consummation of the Transactions orSurviving Company, beginning on and the date of Securityholders’ Representative, hereby agree that any such Privileged Transaction Materials that are shared pursuant to this Agreement, any dispute arising under this Agreement (collectivelySection 13.12 shall be protected by the attorney-client privilege, the “SPAC Deal Communications”attorney work-product privilege and a joint defense privilege, (ii) shall be deemed Buyer and the Surviving Company will use their reasonable best efforts to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal protect any such Privileged Transaction Communications that are attorney-client privileged shared pursuant to this Section 13.12 from disclosure to third parties, and (the “iii) in no circumstances may such Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation Transaction Materials that are shared pursuant to this Section 13.12 be used in any legal proceeding of client confidence relating thereto shall belong solely to Sponsor, shall be controlled any nature by Sponsor and shall not pass to or be claimed by SPAC, PubCo Buyer or the Quantisimo Companies after Surviving Company against the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor Securityholders’ Representative or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third partySecurityholder.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACBuyer, PubCo the Surviving Company or the Quantisimo Companiesany of its Subsidiaries, on the one hand, and a third party other than Sponsorthe Securityholders’ Representative or a Securityholder, on the other hand, Buyer, the Sponsor Surviving Company or any of its Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, however, that neither SPACBuyer, PubCo, nor the Quantisimo Companies Surviving Company or its Subsidiaries may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSecurityholders’ Representative.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the Sponsor, the shareholders or holders of other Equity Securities of SPAC and/or Sponsoror the Sponsor or any of their respective directors, managers, members, partners, officers, employees, independent contractors or Affiliates (collectively, the “SPAC Group”), on the one hand, and the Company, (y) PubCo, the SPAC Merger SubSurviving Corporation, Target or the Company Merger SubSurviving Corporation or any member of the Group Companies, on the other hand, any legal counsel counsel, including Sidley Austin LLP (including DLA Piper LLP“Sidley”), Gill, Godlonton & Gerrans (“GGG”), or Ogier (Cayman) LLP (“Ogier”), that represented SPAC. the Sponsor and/or any other member of the SPAC and/or Sponsor Group prior to the Closing (“Prior SPAC Counsel”) Closing, may represent the Sponsor or any other member of the SPAC Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo, the SPAC Merger Surviving Corporation, the Company Merger Surviving Corporation, or any member of the Group Companies, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo, the SPAC and/or SponsorMerger Surviving Corporation, the Company Merger Surviving Corporation, any Group Company, the Sponsor or any other member of the SPAC Group. All communication No party hereto shall seek to or have Sidley disqualified from any such representation with respect to this Agreement or the Transactions based upon the prior representation of SPAC or any of the other member of the SPAC Group by Sidley. The parties hereto hereby waive any potential conflict of interest arising from such prior representation and each party hereto shall cause its respective Affiliates to consent to waive any potential conflict of interest arising from such representation. Each party hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that such party has consulted with counsel in connection therewith. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Closing, the SPAC Merger Surviving Corporation and the Company Merger Surviving Corporation), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the Transactions) between or among Prior SPAC, the Sponsor or any other member of the SPAC CounselGroup, on the one hand, and SPAC Sidley, GGG or SponsorOgier, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorSPAC Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by CompanyPubCo, SPACthe SPAC Merger Surviving Corporation, PubCo or the Company Merger Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of PubCo and the Company following the ClosingMerger Surviving Corporation.
(b) The Company further agreesCompany, SPAC and the Acquisition Entities, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the SPAC Group, on the one hand, and (y) PubCo, the Company, the SPAC Merger Surviving Corporation, the Company Merger Surviving Corporation or any member of the Group Companies, on the other hand, any legal counsel, including Greenberg Traurig, LLP (“GT”) or Appleby (Cayman) Ltd. (“Appleby”) that represented the Company prior to the Closing may represent the Company or any other member of the Group Companies, in such dispute. No party hereto shall seek to or have GT disqualified from any such representation with respect to this Agreement or the Transactions based upon the prior representation of the Company or any of the other Group Companies by GT. The parties hereto hereby waive any potential conflict of interest arising from such prior representation and each party hereto shall cause its respective Affiliates to consent to waive any potential conflict of interest arising from such representation. Each party hereto acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that such party has consulted with counsel in connection therewith. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Closing, on behalf of SPAC, PubCo the SPAC Merger Surviving Corporation and the Quantisimo CompaniesCompany Merger Surviving Corporation), that further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any form dispute or format whatsoever Action arising out of or relating to, this Agreement, any Transaction Documents or the Transactions) between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation member of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Group Companies, on the one hand, and a third party other than SponsorGT or Appleby, on the other hand, the Sponsor may assert the attorney-/client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree expectation of client confidence shall survive the Mergers and belong to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Group Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and SPAC or the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, (i) any legal counsel (including DLA Piper Hogan Lovells US LLP) that represented SPAC and/or or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC prior to the Closing in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing (ii) any legal counsel (including Allen Overy Shearman Sterling US LLP and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by McMillan LLP) that represented the Company prior to the Closing with (“Prior Company Counsel”) may represent the Company, SPAC or Sponsor (any of their respective Affiliates in any capacity) under a common interest agreement shall remain such dispute even though the privileged communications or information interests of SPAC may be directly adverse to Sponsor, and even though such counsel may have represented the Company following prior to the ClosingClosing in a matter substantially related to such dispute.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo the Company and the Quantisimo Companiestheir respective Affiliates, that all pre-Closing communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, negotiation or documentation and of this Agreement or the Ancillary Agreements or the consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo the Company or the Quantisimo Companies their respective Affiliates after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo the Company or the Quantisimo Companies their respective Affiliates after the Closing; provided, furtherhowever, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo the Company or the Quantisimo Companiestheir respective Affiliates, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither none of SPAC, PubCo, the Company nor the Quantisimo Companies their respective Affiliates may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo the Company or the Quantisimo Companies any of their respective Affiliates is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall SPAC shall, as promptly as reasonably practicable (and, in any event, within two (2) Business Days) after becoming aware thereof thereof, notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can (at the sole cost and expense of Sponsor) seek a protective order order, and SPAC, PubCo the Company and the Quantisimo Companies their respective Affiliates agree to use all commercially reasonable efforts (at the sole cost and expense of Sponsor) to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo the Company or any Quantisimo Companies of their respective Affiliates after the Closing, on the other hand hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company SPAC agrees on behalf of itself and SPACand, PubCo and the Quantisimo Companies after the Closing, on behalf of SPAC and the Company, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies Company receives or takes physical possession of any SPAC Deal Communications, (aA) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, Person of the privileges or protections described in this Section 11.18, and (bB) neither SPACSPAC nor, PubCo nor the Quantisimo Companies after the Closing Closing, the Company shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPACSPAC or, PubCo or any Quantisimo after the Closing, the Company waive the attorney-client or other privilege, or by otherwise asserting that SPACSPAC or, PubCo or the Quantisimo Companies after the Closing has Closing, the Company have the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Plum Acquisition Corp. III)
Conflicts and Privilege. Each Buyer Party, on behalf of itself and its respective Affiliates (awhich, for this purpose, shall be deemed to include the Meritas Companies) SPAC and the Company hereby agree agrees that, notwithstanding any current or prior representation of the Meritas Companies by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the “Sellers’ Firm”), such Sellers’ Firm shall be allowed to represent the Sellers in any matters and disputes adverse to such Buyer Party and/or the event a dispute with respect Meritas Companies that relate to this Agreement or the Transactions other Transaction Agreements or the Transaction. Each Buyer Party, on behalf of itself and its respective Affiliates (which, for this purpose, shall be deemed to include the Meritas Companies) hereby (a) waives any claim that such Buyer Party or any of the Meritas Companies has or may have that any of the Sellers’ Firm has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, if a dispute arises after the Closing between such Buyer Party or among SPAC and/or Sponsorany Meritas Company, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Suba Seller, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to then the Closing (“Prior SPAC Counsel”) Sellers’ Firm may represent Sponsor such Seller in such dispute even though the interests of Sponsor one or more of such Persons may be directly adverse to SPAC, such Buyer Party or such Meritas Company and even though such counsel the Sellers’ Firm may have represented SPAC such Meritas Company in a matter substantially related to such dispute. Each Buyer Party, or may on behalf of itself and its respective Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC and/or Sponsor. All communication deemed to include the Meritas Companies), also agrees that, as to all communications between or among Prior SPAC Counselthe Sellers’ Firm and the Sellers and the Meritas Companies (with respect to the Meritas Companies, on solely prior to the one handClosing) and/or any of their respective Affiliates that (i) primarily relate to or were otherwise in anticipation of the Transaction or any other Transaction Agreement, and SPAC (ii) do not include advice (other than with respect to or Sponsorin anticipation of the Transaction or any other Transaction Agreement) regarding the business, on operations, assets, liabilities (actual or contingent, including pending or threatened actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees and rulings) and properties of the other handMeritas Companies, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Sellers and may be controlled by the Sponsor Sellers and shall not pass to or be claimed by Company, SPAC, PubCo such Buyer Party or the Surviving Corporation following the ClosingMeritas Companies. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that if a dispute arises between SPAC, PubCo the Buyer Parties or any of the Quantisimo Meritas Companies, on the one hand, and a third party other than Sponsor(and unaffiliated with) a Seller, on the other hand, after the Sponsor Closing, then such Meritas Company (to the extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor party of confidential communications by the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSellers’ Firm.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Transaction Agreement (Nord Anglia Education, Inc.)
Conflicts and Privilege. (a) SPAC Acquiror, the Companies, the SIM Sellers and the Holder Representatives on behalf of the applicable Pre-Closing Company Holders hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Acquiror, the Sponsor-Designated Directors or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Subthe Pre-Closing Company Holders or the Holder Representatives, on the other hand, any legal counsel (including DLA Piper Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP) that represented SPAC and/or Acquiror, the Sponsor-Designated Directors or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor-Designated Directors or Sponsor in such dispute even though the interests of the Sponsor-Designated Directors or Sponsor may be directly adverse to SPACAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Acquiror, the Sponsor-Designated Directors or Sponsor. All communication Acquiror, the Companies, the SIM Sellers and the Holder Representatives on behalf of the applicable Pre-Closing Company Holders further agree that, as to all legally privileged communications prior to the Closing between or among Prior SPAC Counselany legal counsel (including Skadden, on Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP) that represented Acquiror, the one hand, and SPAC Sponsor-Designated Directors or Sponsor, on the other hand, shall remain privileged after Sponsor prior to the Closing and any one or more such Persons that relate in any way to the Transactions, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall -Designated Directors and may be controlled by the Sponsor such Sponsor-Designated Directors, and shall not pass to or be claimed or controlled by CompanyAcquiror (after giving effect to the Closing), SPAC, PubCo the Companies or the Surviving Corporation following Pre-Closing Company Holders; provided, that the ClosingSponsor-Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by the Companies or the Pre-Closing Company Holders (other than Granite) prior to the Closing with SPAC Acquiror, Sponsor or Sponsor the Sponsor-Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingSurviving Corporation.
(b) The Company further agreesRecognizing that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP has acted as legal counsel to the Panavision Group, on behalf of itself andthe Principal Panavision Holders, the Panavision Holder Representative and their respective Affiliates prior to the Closing, and that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP intends to act as legal counsel to the Principal Panavision Holders, the Panavision Holder Representative and their respective Affiliates (which will no longer include the Panavision Group) after the Closing, Acquiror hereby waives, on its own behalf of SPACand agrees to cause its Affiliates to waive, PubCo and the Quantisimo Companies, any conflicts that all communications may arise in any form or format whatsoever between or among connection with ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP representing any of Prior SPAC Counselthe Principal Panavision Holders, SPAC the Panavision Holder Representative or their Affiliates after the SponsorClosing as such representation may relate to Acquiror, any Company Group or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under transactions contemplated by this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third partythe Ancillary Agreements.
(c) Recognizing that Stikeman Elliott LLP has acted as legal counsel to the SIM Group and Granite prior to the Closing, and that Stikeman Elliott LLP intends to act as legal counsel to Granite after the Closing, Acquiror hereby waives, on its own behalf and agrees to cause its Affiliates to waive, any conflicts that may arise in connection with Stikeman Elliott LLP representing Granite after the Closing as such representation may relate to Acquiror, any Company Group or any of the transactions contemplated by this Agreement or any of the Ancillary Agreements. Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo any privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege information shared by Granite prior to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived remain the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, privileged communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third partyinformation of Granite.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Saban Capital Acquisition Corp.)
Conflicts and Privilege. (a) SPAC Acquiror, Parent and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC Acquiror, Merger Sub and/or Sponsor, on the one hand, and Parent or the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Nabarro Olswang LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented SPAC Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Acquiror Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror and/or Sponsor. All communication between or among Prior SPAC Acquiror Counsel, on the one hand, and SPAC Acquiror, Merger Sub or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto to Acquiror Deal Communications shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by the Company, SPAC, PubCo Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by Parent or the Company prior to the Closing with SPAC Acquiror or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company Parent further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo Acquiror and the Quantisimo EMEA Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Acquiror Counsel, SPAC Acquiror, Merger Sub or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo Acquiror or the Quantisimo EMEA Companies after the Closing. All SPAC Acquiror Deal Communications that are attorney-client privileged (the “Privileged SPAC Acquiror Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo Acquiror or the Quantisimo EMEA Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo Acquiror or the Quantisimo EMEA Companies, on the one hand, and a third party other than Sponsor, on the other hand, Acquiror or the Sponsor EMEA Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Acquiror Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo Acquiror or the Quantisimo EMEA Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Acquiror Deal Communications, PubCo Acquiror shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.1810.18) so that Sponsor can seek a protective order and SPAC, PubCo Acquiror and the Quantisimo EMEA Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Acquiror Counsel constitute Acquiror Deal Communications that is property of its clients, only Sponsor shall hold such property rights and Prior SPAC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Acquiror Deal Communications by reason of any attorney-client relationship between Prior SPAC Acquiror Counsel, on the one hand, and SPAC, PubCo Acquiror or any Quantisimo EMEA Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company Acquiror agrees on behalf of itself and SPAC, PubCo and the Quantisimo EMEA Companies after the Closing, (i) to the extent that SPAC Acquiror or, after the Closing, PubCo or the Quantisimo EMEA Companies receives or takes physical possession of any SPAC Acquiror Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.1810.18, and (b) neither SPAC, PubCo Acquiror nor the Quantisimo EMEA Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo Acquiror or any Quantisimo EMEA Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo Acquiror or the Quantisimo EMEA Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Acquiror Deal Communications from Prior SPAC Acquiror Counsel so long as such SPAC Acquiror Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (each a “Prior Company Counsel”) has acted as counsel to Parent and the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC Acquiror hereby irrevocably waives and agrees not to assert assert, and agrees to cause the EMEA Companies after the Closing to irrevocably waive and agree not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo EMEA Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) Acquiror further agrees, on behalf of itself and, after the Closing, on behalf of the EMEA Companies, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the EMEA Companies, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Parent on behalf of the EMEA Companies and shall not pass to or be claimed by Acquiror or the EMEA Companies after the Closing. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Parent, shall be controlled by Parent and shall not pass to or be claimed by Acquiror, the Surviving Company or the EMEA Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by Parent or any of its Affiliates (including, after the Closing, the EMEA Companies and its Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between Acquiror or the EMEA Companies, on the one hand, and a third party other than Parent, on the other hand, Acquiror or the EMEA Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither Acquiror nor the EMEA Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Parent. In the event that Acquiror or the EMEA Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, Acquiror shall promptly notify Parent in writing (including by making specific reference to this Section 10.18) so that Parent can seek a protective order and Acquiror agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute Company Deal Communications that is property of its clients, only Parent shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the EMEA Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) Acquiror agrees on behalf of itself and the EMEA Companies after the Closing, (i) to the extent that Acquiror or, after the Closing, the EMEA Companies receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 10.18, and (b) neither Acquiror nor the EMEA Companies after the Closing shall assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Parent waive the attorney-client or other privilege, or by otherwise asserting that Acquiror or the EMEA Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror, the Grosvenor Companies and the Company Grosvenor Holders hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC Acquiror, IntermediateCo and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubGrosvenor Companies and/or the Grosvenor Holders, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented SPAC Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACthe Acquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company Grosvenor Companies prior to the Closing with SPAC Acquiror or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company Grosvenor Companies following the Closing.
(b) The Company further agreesAcquiror and the Grosvenor Companies hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Grosvenor Designated Directors and/or the Grosvenor Holders, on behalf of itself andthe one hand, after and the ClosingGrosvenor Companies and/or Acquiror, on behalf the other hand, any legal counsel (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented the Grosvenor Designated Directors and/or the Grosvenor Holders prior to the Closing may represent the Grosvenor Designated Directors and/or the Grosvenor Holders in such dispute even though the interests of SPACthe Grosvenor Designated Directors and/or the Grosvenor Holders may be directly adverse to the Acquiror and/or the Grosvenor Companies, PubCo and even though such counsel may have represented Acquiror and/or the Grosvenor Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror, the Grosvenor Companies, the Grosvenor Designated Directors and/or the Grosvenor Holders. Acquiror and the Quantisimo CompaniesGrosvenor Companies further agree that, that as to all legally privileged communications in any form or format whatsoever prior to the Closing between or among any of Prior SPAC Counsellegal counsel (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented the Grosvenor Companies, SPAC the Grosvenor Designated Directors and/or the Grosvenor Holders prior to the Closing and any one or the Sponsor, or any of their respective Representatives more such Persons that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelyTransactions, the “SPAC Deal Communications”) shall be deemed attorney/client privilege and the expectation of client confidence belongs to be retained the Grosvenor Holders and/or the Grosvenor Designated Directors and owned collectively by Sponsor, shall may be controlled by Sponsor the Grosvenor Holders and/or such Grosvenor Designated Directors, and shall not pass to or be claimed or controlled by SPAC, PubCo Acquiror (after giving effect to the Closing) or the Quantisimo Companies after Grosvenor Companies; provided that the Closing. All SPAC Deal Communications that are attorney-client privileged (Grosvenor Holders and/or the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and Grosvenor Designated Directors shall not pass waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or be claimed by SPAC, PubCo defense of their respective rights or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) obligations existing under this Agreement. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror prior to the event that a dispute arises between SPAC, PubCo Closing with the Grosvenor Holders or the Quantisimo Companies, on Grosvenor Designated Directors (in any capacity) under a common interest agreement shall remain the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure privileged communications or information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Grosvenor Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing.
Appears in 1 contract
Conflicts and Privilege. Recognizing that ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (a“▇▇▇▇ ▇▇▇▇▇”) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any has acted as legal counsel to Seller and its Affiliates (including DLA Piper LLPthe Acquired Companies) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACClosing, and even though such that ▇▇▇▇ ▇▇▇▇▇ intends to act as legal counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on Seller and its Affiliates (which will no longer include the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacityAcquired Companies) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf each of SPAC, PubCo Buyer and the Quantisimo CompaniesAcquired Companies hereby waives, on its own behalf, any conflicts that may arise in connection with ▇▇▇▇ ▇▇▇▇▇ representing Seller and/or its Affiliates after the Closing as such representation may relate to any Acquired Company or the Transactions. In addition, all communications in any form or format whatsoever involving attorney-client confidences between or among any of Prior SPAC CounselSeller, SPAC or the Sponsor, its Affiliates or any Acquired Company and ▇▇▇▇ ▇▇▇▇▇ in the course of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Privileged Communications”) shall be deemed to be retained attorney-client confidences that belong solely to Seller and owned collectively by Sponsorits Affiliates (and not the Acquired Companies). Accordingly, the Acquired Companies shall be controlled by Sponsor not, without Seller’s consent, have access to any Privileged Communications, or to the files of ▇▇▇▇ ▇▇▇▇▇ relating to its engagement, whether or not the Closing shall have occurred. Without limiting the generality of the foregoing, upon and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are , (i) Seller and its Affiliates shall be the sole holders of the attorney-client privileged privilege with respect to the Privileged Communications and the related engagement, and none of the Acquired Companies shall be a holder thereof, (ii) to the “Privileged SPAC Deal Communications”extent that files of ▇▇▇▇ ▇▇▇▇▇ in respect of such engagement constitute property of the client, only Seller and its Affiliates (and not the Acquired Companies) shall remain privileged after the Closing hold such property rights and the privilege and the expectation of client confidence relating thereto (iii) ▇▇▇▇ ▇▇▇▇▇ shall belong solely have no duty whatsoever to Sponsor, shall be controlled by Sponsor and shall not pass reveal or disclose any such Privileged Communications or files to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates the Acquired Companies by reason of any applicable privileges attorney-client relationship between ▇▇▇▇ ▇▇▇▇▇ and any of the Acquired Companies or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) otherwise. Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or Buyer and any of the Quantisimo Acquired Companies, on the one hand, and a third party Person other than Sponsora party to this Agreement, on the other hand, after the Sponsor Closing, the Acquired Companies may access or obtain all or a portion of the Privileged Communications for the sole purpose of defending against such dispute, and may assert the attorney-client privilege to prevent the disclosure to such Third Party of the Privileged SPAC Deal Communications to such third partyCommunications; provided, however, that neither SPAC, PubCo, nor the Quantisimo Acquired Companies may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSeller (which consent shall not be unreasonably withheld, conditioned or delayed). In the event that SPAC, PubCo Buyer or any of the Quantisimo Acquired Companies is are legally required or requested by Governmental Order governmental order or otherwise (any such request or order, a “Legal Request”) to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo Buyer shall as be entitled to access or obtain a copy of and disclose the Privileged Communications for the sole purpose of complying with any such Legal Request. In the event of any Legal Request, Buyer shall, to the extent legally permitted under applicable Law (including applicable Law restricting the disclosure of confidential supervisory information) and not impracticable after using reasonable efforts, promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor Seller in writing (including prior to the disclosure by making specific reference Buyer of any Privileged Communications to this Section 11.18the extent practicable) so that Sponsor can Seller may attempt to seek a protective order order, and SPAC, PubCo and the Quantisimo Companies agree ▇▇▇▇▇ agrees to use all commercially reasonable efforts (at the sole cost and expense of Seller) to assist therewith.
. ▇▇▇▇ ▇▇▇▇▇ is intended to be an express third-party beneficiary of this Section 12.22 (d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property including all definitions of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described defined terms used in this Section 11.18, 12.22) and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third partymay specifically enforce its terms.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Apogee Enterprises, Inc.)
Conflicts and Privilege. (a) SPAC Acquiror, the Company, PubCo and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Company Amalgamation Closing, the Surviving Company), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Amalgamation Closing between or among SPAC (i) Founder, the shareholders or holders of other equity interests of Acquiror or Founder and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Acquiror Group”), on the one hand, and (ii) the Company, PubCo, SPAC Merger Sub, Target Merger SubSurviving Company and/or any member of the Company Group, on the other hand, any legal counsel counsel, including Winston & S▇▇▇▇▇ LLP (including DLA Piper LLP) “Winston”), that represented SPAC Acquiror and/or Sponsor Founder prior to the Amalgamation Closing (“Prior SPAC Counsel”) may represent Sponsor Founder and/or any other member of the Acquiror Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Company, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Company and/or SponsorFounder. All communication Acquiror, the Company and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Amalgamation Closing, the Surviving Company), further agree that, as to all legally privileged communications prior to the Amalgamation Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Document or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselAcquiror, Founder and/or any other member of the Acquiror Group, on the one hand, and SPAC or SponsorW▇▇▇▇▇▇, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorAcquiror Group after the Amalgamation Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCompany. Notwithstanding the foregoing, any privileged communications or information shared by the Company or Amalgamation Sub prior to the Amalgamation Closing with SPAC Acquiror or Sponsor (in any capacity) Founder under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingCompany.
(b) The Acquiror, the Company further agreesand Amalgamation Sub, on behalf of itself andtheir respective successors and assigns (including, after the Amalgamation Closing, on behalf of SPACthe Surviving Company), PubCo and hereby agree that, in the Quantisimo Companies, that all communications in any form event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Amalgamation Closing between or among any (i) the shareholders or holders of Prior SPAC Counselother equity interests of the Company, SPAC or the Sponsor, or Amalgamation Sub and/or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Company) (collectively, the “SPAC Deal CommunicationsCompany Group”), on the one hand, and (ii) the Surviving Company and/or any member of the Acquiror Group, on the other hand, any legal counsel, including (“Ortoli Rosenstadt LLP”), that represented the Company prior to the Amalgamation Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Company, and even though such counsel may have represented Acquiror, the Company and/or Amalgamation Sub in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company, Acquiror, the Company and Amalgamation Sub, on behalf of their respective successors and assigns (including, after the Amalgamation Closing, the Surviving Company), and further agree that, as to all legally privileged communications prior to the Amalgamation Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company, Amalgamation Sub and/or any member of the Company Group, on the one hand, and O▇▇▇▇▇ R▇▇▇▇▇▇▇▇▇ LLP, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe Company Group after the Amalgamation Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Surviving Company. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror prior to the event that Amalgamation Closing with the Company under a dispute arises between SPAC, PubCo common interest agreement shall remain the privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Company.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (RF Acquisition Corp II)
Conflicts and Privilege. Each of the Parties hereby agrees on behalf of their respective successors and assigns (aincluding after the Closing, the Merger Surviving Company) (all such parties, the “Acknowledging Parties”), that any legal counsel (including Paul Hastings LLP (“PH”)) that represented SPAC and or the Company hereby agree thatSponsor prior to the Closing, may represent the Sponsor or SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Merger Surviving Company) (collectively, the “Sponsor Group”), in the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement, any Ancillary Agreement or the Transactions arises after transactions contemplated hereby or thereby, notwithstanding its prior representation of the Closing Sponsor, SPAC and its Subsidiaries, or other Acknowledging Parties. Each of the Parties, on behalf of itself and the Acknowledging Parties, hereby agrees that all legally privileged communications, between the Sponsor, SPAC, or among SPAC and/or Sponsorits Subsidiaries, or any other member of the Sponsor Group, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubPH (in its role as counsel to SPAC), on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor made prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor Closing, in such connection with the negotiation, preparation, execution, delivery and performance under, or any dispute even though or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the interests of Sponsor may be directly adverse transactions contemplated hereby or thereby, are privileged communications that do not pass to SPACthe Merger Surviving Company notwithstanding the Merger, and even though such counsel may have represented SPAC in a matter substantially related to such disputeinstead survive, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, remain with and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be are controlled by the Sponsor Group (the “Privileged Communications”), without any waiver thereof. The Parties, together with any of their successors or assigns, agree that no Person may use or rely on any of the Privileged Communications, whether located in the records or email server of the Merger Surviving Company and shall not pass to its Subsidiaries, in any Action against or be claimed by Company, SPAC, PubCo or involving any of the Surviving Corporation following Parties after the Closing, and the Parties agree not to assert that any privilege has been waived as to the Privileged Communications, by virtue of the Merger. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingMerger Surviving Company.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Chenghe Acquisition II Co.)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger SubSub 1, Target Merger SubSub 2, on the other hand, that Loeb & Loeb LLP (or any legal counsel (including DLA Piper LLPof its successors) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Caravelle Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Caravelle Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Caravelle Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Caravelle Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, SPAC nor the Quantisimo Caravelle Companies may waive such privilege with respect to Privileged SPAC Company Deal Communications without the prior written consent of the SponsorSurviving Corporation. In the event that SPAC, PubCo or the Quantisimo Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Caravelle Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Caravelle Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Caravelle Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Caravelle Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Caravelle Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. ▇▇▇ ▇▇ Law Offices LLC (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Caravelle Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) SPAC further agrees that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Caravelle Companies, or PubCo or the Acquisition Entities or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the Caravelle Companies and shall not pass to or be claimed by SPAC. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities, on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Surviving Corporation in writing (including by making specific reference to this Section 11.8) so that Surviving Corporation can seek a protective order and SPAC agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) SPAC agrees (i) to the extent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 11.18, and (b) SPAC shall not assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC and/or Sponsoror the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “Altimeter Group”), on the one hand, and the Company, (y) PubCo, SPAC Merger Sub, Target Merger Subthe Surviving Corporation or any member of the Grab Group, on the other hand, any legal counsel counsel, including Ropes & ▇▇▇▇ LLP (including DLA Piper LLP) “Ropes”), that represented SPAC and/or or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or PubCo, the Surviving Corporation or the Sponsor. All communication The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Altimeter Group, on the one hand, and SPAC or SponsorRopes, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAltimeter Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third partySurviving Corporation.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Acquiror and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC Acquiror, Merger Sub and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented SPAC Acquiror and/or Sponsor prior to the Closing (“Prior SPAC Acquiror Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror and/or Sponsor. All communication between or among Prior SPAC Acquiror Counsel, on the one hand, and SPAC Acquiror, Merger Sub or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo Acquiror or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Acquiror or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo Acquiror and the Quantisimo AEye Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Acquiror Counsel, SPAC Acquiror, Merger Sub or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo Acquiror or the Quantisimo AEye Companies after the Closing. All SPAC Acquiror Deal Communications that are attorney-client privileged (the “Privileged SPAC Acquiror Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo Acquiror or the Quantisimo AEye Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo Acquiror or the Quantisimo AEye Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Acquiror Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo Acquiror or the Quantisimo AEye Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Acquiror Deal Communications, PubCo Acquiror shall as promptly as practicable immediately (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.1810.18) so that Sponsor can seek a protective order and SPAC, PubCo Acquiror and the Quantisimo AEye Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Acquiror Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Acquiror Deal Communications by reason of any attorney-client relationship between Prior SPAC Acquiror Counsel, on the one hand, and SPAC, PubCo Acquiror or any Quantisimo AEye Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo Acquiror and the Quantisimo AEye Companies after the Closing, (i) to the extent that SPAC Acquiror or, after the Closing, PubCo or the Quantisimo AEye Companies receives or takes physical possession of any SPAC Acquiror Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.1810.18, and (b) neither SPAC, PubCo Acquiror nor the Quantisimo AEye Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo Acquiror or any Quantisimo AEye Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo Acquiror or the Quantisimo AEye Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Acquiror Deal Communications from Prior SPAC Acquiror Counsel so long as such SPAC Acquiror Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. DLA Piper (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC Acquiror hereby irrevocably waives and agrees not to assert assert, and agrees to cause the AEye Companies after the Closing to irrevocably waive and agree not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo AEye Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) Acquiror further agrees, on behalf of itself and, after the Closing, on behalf of the AEye Companies, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the AEye Companies, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the AEye Companies and shall not pass to or be claimed by Acquiror or the AEye Companies after the Closing. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by Acquiror or the AEye Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by Acquiror or any of its Affiliates (including, after the Closing, the AEye Companies and its Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between Acquiror or the AEye Companies, on the one hand, and a third party other than Sponsor, on the other hand, Acquiror or the AEye Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither Acquiror nor the AEye Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that Acquiror or the AEye Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, Acquiror shall immediately (and, in any event, within two (2) Business Days) notify Surviving Corporation in writing (including by making specific reference to this Section 10.18) so that Surviving Corporation can seek a protective order and Acquiror agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the AEye Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) Acquiror agrees on behalf of itself and the AEye Companies after the Closing, (i) to the extent that Acquiror or, after the Closing, the AEye Companies receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 10.18, and (b) neither Acquiror nor the AEye Companies after the Closing shall assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that Acquiror or the AEye Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Sources: Merger Agreement (CF Finance Acquisition Corp. III)
Conflicts and Privilege. (a) SPAC From and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or SponsorDate, on the one handfiles maintained by ▇▇▇▇▇▇▇▇ Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing LLP (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though and the interests attorney-client privilege of Sponsor the Scout Group with Counsel relating to the Transaction shall be deemed to be the right of the Seller, and not that of the Scout Group, and may be directly adverse to SPACwaived only by the Seller, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may all other attorney-client privileges of the Scout Group shall be handling ongoing matters for SPAC and/or Sponsorretained by the Scout Group. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after Following the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the SponsorDate, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or on the Sponsorone hand, and the Scout Group and the Seller Transaction Related Parties (as defined below) through the Closing Date, or any of their respective Representatives directors, trustees, officers, employees, or other representatives, on the other hand, that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Transaction (collectively, the “SPAC Deal Privileged Communications”) shall be deemed to be retained attorney-client privileged and owned collectively by Sponsorthat the Privileged Communications and the expectation of confidence relating thereto belong solely to the Seller, shall be controlled by Sponsor the Seller and shall not pass to or be claimed by SPACthe Purchaser, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to SponsorScout Group, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates their respective Affiliates.
(b) Each of the parties hereto acknowledges and agrees that, as of immediately prior to the Closing, the Scout Group is the client of Counsel. After the Closing, it is possible that Counsel will represent the Seller and/or their respective Related Persons (individually and collectively, the “Seller Transaction Related Parties”) in connection with matters and/or Claims relating to, or arising out of, this Agreement and the Ancillary Agreements. Each of the parties hereto agrees that Counsel may represent the Seller Transaction Related Parties in the future in connection with matters and/or Claims relating to, or arising out of, this Agreement and the Ancillary Agreements, and waives any applicable privileges or protections that can or may be asserted to prevent disclosure conflict of any such communications to any third partyinterest arising therefrom.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo the Scout Group or the Quantisimo Companiesany of its Affiliates, on the one hand, and a third party other than Sponsorthe Seller or any of its Affiliates, on the other hand, the Sponsor Purchaser, the Scout Group, or their respective Affiliates may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPACnone of the Purchaser, PubCothe Scout Group, nor the Quantisimo Companies or their respective Affiliates may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSeller. In the event that SPACthe Purchaser, PubCo the Scout Group, or the Quantisimo Companies any of their respective Affiliates is legally required by Governmental Order governmental order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo the Purchaser shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor the Seller in writing (including by making specific reference to this Section 11.1810.11) so that Sponsor the Seller can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree Purchaser agrees to use all commercially reasonable efforts to assist therewith.
, it being acknowledged and agreed that nothing contained in this clause (dc) To shall be deemed to interfere with the extent that files or other materials maintained by Prior SPAC Counsel constitute property ability of its clientsthe Purchaser, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials the Scout Group, or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject their respective Affiliates to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection comply with any matter legal requirement or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closingapplicable law.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Buyer, Buyer Parent, the Companies and the Company Subsidiaries hereby agree that, in the event a dispute arises under or in connection with respect to this Agreement or the Transactions arises after the Closing between Buyer, Buyer Parent, the Companies or among SPAC and/or Sponsorthe Subsidiaries, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSeller, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP may represent Sponsor Seller in such dispute even though the interests of Sponsor Seller may be directly adverse to SPACthe Companies or the Subsidiaries, and even though such counsel ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP may have represented SPAC the Companies or the Subsidiaries in a matter substantially related to such the dispute, or may be handling ongoing matters for SPAC and/or Sponsorthe Companies and the Subsidiaries. All communication Buyer, Buyer Parent, the Companies, the Subsidiaries and Seller further agree that, as to all communications between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, the Companies, the Subsidiaries and Seller that relate, both prior to or among Prior SPAC Counselafter the Closing, on to (a) the one handtransactions contemplated by this Agreement, including without limitation the negotiation, preparation, execution, delivery and closing under, or any dispute arising under or in connection with this Agreement which, immediately prior to the Closing, would be covered by the attorney-client privilege of Seller and its counsel, and SPAC or Sponsor(b) the DFS Subpoena, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller, and shall not pass to or be claimed or controlled by Company, SPAC, PubCo the Companies or the Surviving Corporation following the Closing. Notwithstanding the foregoingSubsidiaries; provided, any privileged communications or information shared by the Company prior that Seller shall not waive such attorney-client privilege other than to the Closing extent appropriate in connection with SPAC the enforcement or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any defense of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of rights or obligations existing under this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACBuyer, PubCo Buyer Parent, the Companies or the Quantisimo Companies, on the one hand, Subsidiaries and a third party person other than Sponsor, on Seller after the other handClosing, the Sponsor Companies or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsorperson. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall Other than as promptly as practicable (and, explicitly set forth in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so 12.12, the parties hereto acknowledge that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on privilege attaching as a result of legal counsel representing the one handCompanies and the Subsidiaries prior to the Closing shall survive the Closing and continue to be a privilege of the Companies and the Subsidiaries, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC ornot Seller, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC and/or Sponsoror the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “Axiom Group”), on the one hand, and the Company, (y) PubCo, SPAC Merger Sub, Target Merger Subthe Surviving Corporation or any member of the Terra Quantum Group, on the other hand, any legal counsel counsel, including ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Schole LLP (including DLA Piper LLP) each an “Acquirer Counsel”), that represented SPAC and/or or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Axiom Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or PubCo, the Surviving Corporation or the Sponsor. All communication The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Axiom Group, on the one hand, and SPAC or Sponsorany Acquirer Counsel, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAxiom Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of PubCo and the Company following the ClosingSurviving Corporation.
(b) The Company further agreesCompany, SPAC and the Acquisition Entities, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever Acquisition Closing between or among any (x) the shareholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, Company or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than PubCo or the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsTerra Quantum Group”), on the one hand, and (y) the Surviving Corporation or any member of the Axiom Group, on the other hand, any legal counsel, including Winston & ▇▇▇▇▇▇ LLP, Heussen Rechtsanwaltsgesellschaft mbH, ▇▇▇▇▇▇▇▇▇▇ Carrard and ▇▇▇▇▇▇▇▇▇▇ Rechtsanwälte (each, “Target Counsel”) that represented the Company prior to the Acquisition Closing may represent any member of the Terra Quantum Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Terra Quantum Group, on the one hand, and any Target Counsel, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe Terra Quantum Group after the Acquisition Closing, shall be controlled by Sponsor and shall not pass to or be claimed or controlled by SPAC, PubCo or the Quantisimo Companies after the ClosingSurviving Corporation. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in any privileged communications or information shared by SPAC or Sponsor prior to the event that Acquisition Closing with the Company under a dispute arises between SPAC, common interest agreement shall remain the privileged communications or information of PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Axiom Intelligence Acquisition Corp 1)
Conflicts and Privilege. (a) SPAC Horizon and the Company VS Entities hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC Horizon and/or Sponsor, on the one hand, and Topco and/or the Company, PubCo, SPAC Merger Sub, Target Merger SubVS Companies, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP) that represented SPAC Horizon and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACHorizon, and even though such counsel may have represented SPAC Horizon in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Horizon and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by Topco or the Company VS Companies prior to the Closing with SPAC Horizon or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of Topco and/or the Company VS Companies following the Closing.
(b) The Company further agreesHorizon and the VS Entities hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the VS Designated Directors and/or Topco, on behalf of itself andthe one hand, after and the ClosingVS Companies and/or Horizon, on behalf the other hand, any legal counsel (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented the VS Designated Directors and/or Topco prior to the Closing may represent the VS Designated Directors and/or Topco in such dispute even though the interests of SPACthe VS Designated Directors and/or Topco may be directly adverse to Horizon and/or the VS Companies, PubCo and even though such counsel may have represented Horizon and/or the VS Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Horizon, the VS Companies, the VS Designated Directors and/or Topco. Horizon and the Quantisimo CompaniesVS Companies further agree that, that as to all legally privileged communications in any form or format whatsoever prior to the Closing between or among any of Prior SPAC Counsellegal counsel (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented Topco, SPAC the VS Designated Directors and/or the VS Companies prior to the Closing and any one or the Sponsor, or any of their respective Representatives more such Persons that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelyTransactions, the “SPAC Deal Communications”) shall be deemed attorney/client privilege and the expectation of client confidence belongs to be retained Topco and/or the VS Designated Directors and owned collectively by Sponsor, shall may be controlled by Sponsor Topco and/or such VS Designated Directors, and shall not pass to or be claimed or controlled by SPAC, PubCo Horizon (after giving effect to the Closing) or the Quantisimo Companies after VS Companies; provided that Topco and/or the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and VS Designated Directors shall not pass waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or be claimed by SPAC, PubCo defense of their respective rights or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) obligations existing under this Agreement. Notwithstanding the foregoing, in any privileged communications or information shared by Horizon prior to the event that a dispute arises between SPAC, PubCo Closing with Topco or the Quantisimo Companies, on VS Designated Directors (in any capacity) under a common interest agreement shall remain the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure privileged communications or information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo VS Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC Each Party acknowledges and agrees that each of Milbank and ▇▇▇▇▇▇▇▇▇ has acted as counsel for Seller, and may have acted as counsel for its Affiliates (including the Company and its Subsidiaries), in connection with this Agreement and the Contemplated Transactions (the “Acquisition Engagement”).
(b) Each Party acknowledges and agrees that all confidential communications between Seller and its Affiliates (including the Company hereby agree thatand its Subsidiaries), on the one hand, and Milbank or ▇▇▇▇▇▇▇▇▇, on the other hand, in the event a dispute with respect course of the Acquisition Engagement, and any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to this Agreement belong solely to Seller and its Affiliates (other than, following the Closing, the Company and its Subsidiaries), and shall not pass to or be claimed, held, or used by Buyer or any of its Affiliates (including, following the Transactions arises Closing, the Company and its Subsidiaries) upon or after the Closing. Accordingly, Buyer shall not have access to any such communications, or to the files of Milbank or ▇▇▇▇▇▇▇▇▇ relating to the Acquisition Engagement, whether or not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Milbank or ▇▇▇▇▇▇▇▇▇ in respect of the Acquisition Engagement constitute property of the client, only Seller and its Affiliates (other than, following the Closing, the Company and its Subsidiaries) shall hold such property rights; and (ii) Milbank or ▇▇▇▇▇▇▇▇▇, as the case may be, shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to Buyer or any of its Affiliates (including, following the Closing, the Company and its Subsidiaries) by reason of any attorney-client relationship between Milbank or among SPAC and/or Sponsor▇▇▇▇▇▇▇▇▇, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubCompany or any of its Subsidiaries, on the other hand, or otherwise. If and to the extent that, at any legal counsel time subsequent to the Closing, Buyer or any of its Affiliates (including DLA Piper LLPincluding, following the Closing, the Company or any of its Subsidiaries) that represented SPAC and/or Sponsor shall have the right to assert or waive any attorney-client privilege with respect to any communication between Seller or any of its Affiliates (including, prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though Closing, the interests of Sponsor may be directly adverse to SPAC, Company and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counselits Subsidiaries), on the one hand, and SPAC Milbank or Sponsor▇▇▇▇▇▇▇▇▇ (as the case may be), on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, that occurred at any privileged communications or information shared by the Company time prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, Buyer, on behalf of itself andand its Affiliates (including, after following the Closing, on behalf of SPAC, PubCo the Company and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsorits Subsidiaries), shall be controlled by Sponsor and shall not pass entitled to or be claimed by SPAC, PubCo or waive such privilege only with the Quantisimo Companies after the Closingprior written consent of Seller. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACBuyer or any of its Affiliates (including, PubCo or following the Quantisimo CompaniesClosing, the Company and its Subsidiaries), on the one hand, and a third party Third Party (other than Sponsorthan, on for the other handavoidance of doubt, Seller or any of its Affiliates), after the Closing, Buyer or any of its Affiliates (including, following the Closing, the Sponsor Company and its Subsidiaries) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications attorney-client communications or files to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithThird Party.
(dc) To Each Party acknowledges and agrees that Milbank and ▇▇▇▇▇▇▇▇▇ may continue to represent Seller and its Affiliates (other than, following the extent that files Closing, the Company and its Subsidiaries) in future matters. Accordingly, Buyer, on behalf of itself and its Affiliates (including, following the Closing, the Company and its Subsidiaries), expressly (i) consents to Milbank’s and ▇▇▇▇▇▇▇▇▇’▇ representation of Seller and its Affiliates (other than, following the Closing, the Company and its Subsidiaries) in any matter, including any post-Closing matter in which the interests of Buyer or other materials maintained by Prior SPAC Counsel constitute property any of its clientsAffiliates (including, only Sponsor shall hold such property rights following the Closing, the Company and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counselits Subsidiaries), on the one hand, and SPACSeller and its Affiliates (other than, PubCo or any Quantisimo Companies after following the Closing, the Company and its Subsidiaries), on the other hand so long hand, are adverse, including any matter relating to the Contemplated Transactions, and whether or not such matter is one in which Milbank or ▇▇▇▇▇▇▇▇▇, as such files the case may be, may have previously advised Seller or any of its Affiliates (including the Company and its Subsidiaries); and (ii) consents to the disclosure by Milbank and ▇▇▇▇▇▇▇▇▇ to Seller and its Affiliates (other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPACthan, PubCo and the Quantisimo Companies after following the Closing, (ithe Company and its Subsidiaries) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communicationsinformation learned by Milbank or ▇▇▇▇▇▇▇▇▇, (a) such physical possession or receipt shall notas the case may be, in any waythe course of its representation of Seller and its Affiliates (including the Company and its Subsidiaries), be deemed a waiver by Sponsor whether or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the not such information is subject to attorney-client privilege, attorney work-work product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other informationprotection, or by seeking to Milbank’s or ▇▇▇▇▇▇▇▇▇’▇ duty of confidentiality.
(d) Buyer and its Affiliates (including, following the Closing, the Company and its Subsidiaries) shall not have SPAC, PubCo or any Quantisimo Company waive the attorney-client relationship with Milbank or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications ▇▇▇▇▇▇▇▇▇ from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing, unless and to the extent Milbank or ▇▇▇▇▇▇▇▇▇, as the case may be, is specifically engaged in writing by Buyer or its Affiliates (including, following the Closing, the Company and its Subsidiaries) to represent such Person after the Closing. Any such representation by Milbank or ▇▇▇▇▇▇▇▇▇ after the Closing shall not affect the foregoing provisions hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Huntington Ingalls Industries, Inc.)
Conflicts and Privilege. (a) SPAC and the Company Company, on behalf of their respective successors and assigns (including, after the Closing, New SPAC), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among the Sponsor, the SPAC Shareholders or holders of other equity interests of SPAC or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than New SPAC) (collectively, the “SPAC Group”), on the one hand, and New SPAC and/or the Company, PubCoany Company Subsidiary and/ or any of their respective directors, SPAC Merger Submembers, Target Merger Subpartners, officers, employees or Affiliates (collectively, the “Company Group”), on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP and Torys LLP) that represented SPAC and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the SPAC Group in such dispute even though the interests of Sponsor such Persons may be directly adverse to the SPAC or New SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC, the Sponsor and/or any other member of the SPAC and/or SponsorGroup. All communication SPAC and the Company further agree that, as to all legally privileged communications prior to the Closing between or among Prior any legal counsel (including ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP and Torys LLP) that represented SPAC, the Sponsor and/or any other member of the SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after Group prior to the Closing and any one or more such Persons that relate in any way to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, SPAC Group and shall be controlled by the Sponsor SPAC Group, and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following SPAC (after giving effect to the Closing) and the Company. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC, the Sponsor and/or any other member of the SPAC or Sponsor Group (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingNew SPAC.
(b) The Company further agreesSPAC and the Company, on behalf of itself andtheir respective successors and assigns (including, after the Closing, New SPAC) hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the Company Shareholders or holders of other equity interests of the Company and/or any of Company Group, on behalf the one hand, and New SPAC and/or any member of the SPAC Group, on the other hand, any legal counsel (including ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP) that represented the Company and/or any member of the Company Group prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to New SPAC, PubCo and even though such counsel may have represented SPAC and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for New SPAC. SPAC and the Quantisimo CompaniesCompany further agree that, that as to all legally privileged communications in any form or format whatsoever prior to the Closing between or among any of Prior SPAC Counsel, SPAC legal counsel (including ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP) that represented the Company prior to the Closing and any one or the Sponsor, or any of their respective Representatives more such Persons that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelytransactions contemplated hereby, the “SPAC Deal Communications”) shall be deemed attorney/client privilege and the expectation of client confidence belongs to be retained the Company Group and owned collectively by Sponsor, shall be controlled by Sponsor the Company Group, and shall not pass to or be claimed or controlled by the SPAC, PubCo New SPAC or the Quantisimo Companies after the ClosingCompany. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo any privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged information shared by SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, Company Group under a common interest agreement shall remain the “Company Advised Parties”) prior to and after the Closingprivileged communications or information of New SPAC.
Appears in 1 contract
Sources: Business Combination Agreement (Oxus Acquisition Corp.)
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (a) SPAC which, for this purpose, shall be deemed to include the Company and the Company hereby agree Subsidiaries) agrees that, notwithstanding any current or prior representation of the Company and the Subsidiaries by Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and any of his Affiliates in any matters and disputes adverse to Buyer, the Company and/or any Subsidiary that either are existing on the date hereof or arise in the event future. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) hereby waives any claim that Buyer, the Company or any Subsidiary has or may have that Sidley Austin LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and agrees that, if a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer, the Company or among SPAC and/or Sponsorany Subsidiary and Seller or any of his Affiliates, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) then Sidley Austin LLP may represent Sponsor Seller or such Affiliate in such dispute even though the interests of Sponsor Seller or such Affiliate may be directly adverse to SPACBuyer, the Company and/or such Subsidiary and even though such counsel Sidley Austin LLP may have represented SPAC the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, or may on behalf of itself and its Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC and/or Sponsor. All communication deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or among Prior SPAC CounselSidley Austin LLP and Seller, on the one handCompany, and SPAC or Sponsorany Subsidiary and/or any of their respective Affiliates that occur prior to the Closing, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by CompanyBuyer, SPAC, PubCo the Company or the Surviving Corporation following the Closingany Subsidiary. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that if a dispute arises between SPACBuyer, PubCo the Company or the Quantisimo Companies, on the one hand, any Subsidiary and a third party other than SponsorSeller or an Affiliate of Seller after the Closing, on then the other hand, Company or any such Subsidiary (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Sidley Austin LLP; provided, however, provided that neither SPAC, PubCo, nor if the Quantisimo Companies may Company or the Subsidiaries elect to waive such privilege with respect to Privileged SPAC Deal Communications without privilege, the prior written consent of the Sponsor. In the event that SPAC, PubCo Company or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithsuch waiver.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC Buyer and the Company Sellers hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among SPAC and/or SponsorComfort Care and a Seller, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) ▇▇▇▇▇▇ Snow LLP may represent Sponsor such Seller in such dispute even though the interests of Sponsor such Seller may be directly adverse to SPACComfort Care, and even though such counsel ▇▇▇▇▇▇ Snow LLP may have represented SPAC Comfort Care in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or SponsorComfort Care. All communication Buyer further agrees that, as to all communications between ▇▇▇▇▇▇ Snow LLP, Comfort Care and Sellers that relate in any way to the transactions contemplated by this Agreement (a “Privileged Communication”), the attorney-client, work product, business strategy or among Prior SPAC Counsel, on the one hand, and SPAC similar protection or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Sellers and may be controlled by the Sponsor Sellers, and shall not transfer, pass to or be claimed or controlled by Company, SPAC, PubCo Comfort Care or Buyer notwithstanding the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior transfer of Membership Interests hereunder; provided that Sellers shall not waive such attorney-client privilege other than to the Closing extent appropriate in connection with SPAC the enforcement or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any defense of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising rights or obligations existing under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) other Transaction Documents. Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo Buyer or the Quantisimo Companies, on the one hand, Comfort Care and a third party Person other than Sponsora Seller after the Closing, on the other hand, the Sponsor Comfort Care may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications by ▇▇▇▇▇▇ Snow LLP to such third partyPerson; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies Comfort Care may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSellers, which consent will not be unreasonably withheld. In the event that SPAC, PubCo Buyer or the Quantisimo Companies any of its Affiliates (including any Company or Subsidiary) is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo to the extent permitted by applicable Legal Requirements, then Buyer shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor the Sellers’ Representative in writing (including by making specific reference to this Section 11.18) so that Sponsor the Sellers’ Representative can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested order. Notwithstanding anything in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) this Section 12.13 to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall notcontrary, in any waysuch case, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing Parties shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not reasonably cooperate to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as provide for access in a manner that does not violate any such SPAC Deal Communications would be subject to a privilege or protection if they were being requested applicable Legal Requirements; provided that in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreementeach such case, the Ancillary Agreements Sellers’ Representative shall reasonably cooperate with Buyer to enable Buyer and the Transactions. In connection with any matter its representatives to enter into appropriate confidentiality, joint defense or dispute under this Agreement, SPAC hereby irrevocably waives similar arrangements so that Buyer and agrees not its representatives may have reasonable access to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closingsuch information.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Aveanna Healthcare Holdings, Inc.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that Seller and the Companies have retained Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC (together, the “Existing Counsel”) to act as counsel in connection with the transactions contemplated hereby and with respect to other matters occurring prior to or after the date hereof. To the extent that any material subject to the attorney-client privilege or any other applicable legal privilege, as regards the Companies, has been shared between them, whether prior to or after the date hereof, it is the parties’ desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way such material’s continued protection under attorney-client or any other applicable legal privilege. Specifically, the parties agree that (a) SPAC Parent and Purchaser shall not, and from and after the Company hereby agree thatClosing shall cause the Companies to not, seek to have any Existing Counsel disqualified from representing Seller or (prior to the Closing only) the Companies in the event a any dispute with respect (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or any of the Transactions arises after the Closing between transactions contemplated hereunder in whole or among SPAC and/or Sponsor, on the one handin part, and the Company(b) in connection with any dispute that may arise, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, Seller or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than SponsorParent or Purchaser, on the other hand, or, from and after the Sponsor Closing, Parent, Purchaser or the Companies, on the one hand, and Seller, on the other hand, Seller (and not any of the Companies) will have the sole and exclusive right to decide whether or not to waive any attorney-client or other applicable privilege that may assert apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or prior to the Closing. Except with respect to any existing or pending litigation or administrative proceedings, or any internal investigations relating to circumstances that could result in either of the foregoing, for which the parties shall cooperate in good faith to share attorney-client privilege, upon and after the Closing, (i) Seller and its Affiliates (and not the Companies) shall be the sole holders of the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such and any other applicable legal privilege with respect to Privileged SPAC Deal Communications without the prior written consent engagement of Existing Counsel, and none of the Sponsor. In the event that SPACCompanies shall be a holder thereof, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise (ii) to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC of Existing Counsel constitute property of its clientsthe client, only Sponsor Seller and its Affiliates (and not the Companies) shall hold such property rights rights, and Prior SPAC (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files or other materials or to any Privileged SPAC Deal Communications of the Companies by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, Existing Counsel and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges Companies or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation otherwise. [Remainder of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.page intentionally left blank]
Appears in 1 contract
Sources: Stock Purchase Agreement (Entercom Communications Corp)
Conflicts and Privilege. (a) SPAC Acquiror and the Company Company, on behalf of their respective successors and assigns (including, after the Closing, Acquiror), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC (x) the Sponsor, the shareholders or holders of other equity interests of Acquiror or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than Acquiror) (collectively, the “Founder Group”), on the one hand, and (y) Acquiror and/or any member of the Company, PubCo, SPAC Merger Sub, Target Merger SubCompany Group (as defined below), on the other hand, any legal counsel counsel, including Winston & S▇▇▇▇▇ LLP (including DLA Piper LLP) “Winston”), that represented SPAC Acquiror and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor and/or any other member of the Founder Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACAcquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror and/or the Sponsor. All communication Acquiror and the Company, on behalf of their respective successors and assigns, further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselAcquiror, the Sponsor and/or any other member of the Founder Group, on the one hand, and SPAC or SponsorWinston, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorFounder Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingAcquiror. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingAcquiror.
(b) The Company further agreesAcquiror and the Company, on behalf of itself andtheir respective successors and assigns (including, after the Closing, on behalf of SPACAcquiror), PubCo and hereby agree that, in the Quantisimo Companies, that all communications in any form event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Closing between or among any (x) the stockholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, or Company and any of their respective Representatives that relate in any way to the negotiationdirectors, documentation and consummation of the Transactions ormembers, beginning on the date of this Agreementpartners, any dispute arising under this Agreement officers, employees or Affiliates (other than Acquiror) (collectively, the “SPAC Deal CommunicationsCompany Group”), on the one hand, and (y) Acquiror and/or any member of the Founder Group, on the other hand, any legal counsel, including G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ LLP (“GDC”) and Chamberlain, Hrdlicka, White, W▇▇▇▇▇▇▇ & A▇▇▇▇▇▇ (“CHWWA”), that represented the Company prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to Acquiror, and even though such counsel may have represented Acquiror and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror. Acquiror and the Company, on behalf of their respective successors and assigns further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby) between or among the Company and/or any member of the Company Group, on the one hand, and GDC or CHWWA, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe Company Group after the Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Acquiror. Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo any privileged communications or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the information shared by Acquiror prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after Closing with the Closing, PubCo or Company under a common interest agreement shall remain the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, privileged communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third partyinformation of Acquiror.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Conflicts and Privilege. (a) SPAC The Company, SPAC, Merger Sub I and the Company Merger Sub II, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions Transaction arises after the Closing between or among SPAC and/or (i) the Sponsor, the shareholders or holders of any Equity Securities of SPAC, or the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Company or the Second Surviving Subsidiary) (collectively, the “Gesher Group”), on the one hand, and (ii) the Company, PubCo, SPAC Merger Sub, Target Merger SubCompany or any member of the Freightos Group, on the other hand, then any legal counsel (counsel, including DLA Piper LLP) BCLP, that represented SPAC and/or or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Gesher Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Company or the Second Surviving Subsidiary, and even though such counsel may have represented SPAC in a matter substantially related to such dispute. The Company, SPAC, Merger Sub I and Merger Sub II, on behalf of their respective successors and assigns (including the Second Surviving Subsidiary) further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or may be handling ongoing matters for SPAC and/or Sponsor. All communication any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the Transaction) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Gesher Group, on the one hand, and SPAC or SponsorBCLP, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorGesher Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by the Company or the Second Surviving Subsidiary. Further, the Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, Merger Sub I and Merger Sub II agree that any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following and the ClosingSecond Surviving Subsidiary.
(b) The Company further agreesCompany, SPAC, Merger Sub I and Merger Sub II, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transaction arises after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever Closing between or among (i) the shareholders or holders of any Equity Securities of Prior SPAC Counsel, SPAC or the Sponsor, Company or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than the negotiation, documentation and consummation of Company or the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Second Surviving Subsidiary) (collectively, the “SPAC Deal CommunicationsFreightos Group”), on the one hand, and (ii) the Company, the Second Surviving Subsidiary or any member of the Gesher Group, on the other hand, then any legal counsel, including DLA, that represented the Company prior to the Closing may represent any member of the Freightos Group in such dispute even though the interests of such Persons may be directly adverse to the Company and the Second Surviving Subsidiary, and even though such counsel may have represented the Company in a matter substantially related to such dispute. The Company, SPAC, Merger Sub I and Merger Sub II, on behalf of their respective successors and assigns (including the Second Surviving Subsidiary), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the Transaction) between or among the Company or any member of the Freightos Group, on the one hand, and DLA, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe Freightos Group after the Closing, shall be controlled by Sponsor and shall not pass to or be claimed or controlled by SPAC, PubCo the Company or the Quantisimo Companies after the ClosingSecond Surviving Subsidiary. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other handFurther, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged Company, SPAC Deal Communications to such third party; provided, however, Merger Sub I and Merger Sub II agree that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, privileged communications or other information, or information shared by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) Freightos Group prior to and after the ClosingClosing with the Company, SPAC, or the Sponsor under a common interest agreement shall remain the privileged communications or information of such member of the Freightos Group.
Appears in 1 contract
Sources: Business Combination Agreement (Gesher I Acquisition Corp.)
Conflicts and Privilege. (a) SPAC PubCo and the Company BT Entities hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC PubCo and/or Sponsor, on the one hand, and BT Assets and/or the Company, PubCo, SPAC Merger Sub, Target Merger SubBT Companies, on the other hand, any legal counsel (including DLA Piper ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented SPAC PubCo and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPACPubCo, and even though such counsel may have represented SPAC PubCo in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC PubCo and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by BT Assets or the Company BT Companies prior to the Closing with SPAC PubCo or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of BT Assets and/or the Company BT Companies following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo BT Entities hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among the BT Designated Directors and/or BT Assets, on the one hand, and the BT Companies and/or PubCo, on the other hand, any legal counsel (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented the BT Designated Directors and/or BT Assets prior to the Closing may represent the BT Designated Directors and/or BT Assets in such dispute even though the interests of the BT Designated Directors and/or BT Assets may be directly adverse to PubCo and/or the BT Companies, that and even though such counsel may have represented PubCo and/or the BT Companies in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo, the BT Companies, the BT Designated Directors and/or BT Assets. PubCo and the BT Companies further agree that, as to all legally privileged communications in any form or format whatsoever prior to the Closing between or among any of Prior SPAC Counsellegal counsel (including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) that represented BT Assets, SPAC the BT Designated Directors and/or the BT Companies prior to the Closing and any one or the Sponsor, or any of their respective Representatives more such Persons that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelyTransactions, the “SPAC Deal Communications”) shall be deemed attorney/client privilege and the expectation of client confidence belongs to be retained BT Assets and/or the BT Designated Directors and owned collectively by Sponsor, shall may be controlled by Sponsor BT Assets and/or such BT Designated Directors, and shall not pass to or be claimed or controlled by SPAC, PubCo (after giving effect to the Closing) or the Quantisimo Companies after BT Companies; provided that BT Assets and/or the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and BT Designated Directors shall not pass waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or be claimed by SPAC, PubCo defense of their respective rights or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) obligations existing under this Agreement. Notwithstanding the foregoing, in any privileged communications or information shared by PubCo prior to the event that a dispute arises between SPAC, PubCo Closing with BT Assets or the Quantisimo Companies, on BT Designated Directors (in any capacity) under a common interest agreement shall remain the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure privileged communications or information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo BT Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing.
Appears in 1 contract
Sources: Transaction Agreement (GSR II Meteora Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto that Seller and the Companies have retained Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC (together, the “Existing Counsel”) to act as counsel in connection with the transactions contemplated hereby and with respect to other matters occurring prior to or after the date of the Original Agreement. To the extent that any material subject to the attorney-client privilege or any other applicable legal privilege, as regards the Companies, has been shared between them, whether prior to or after the date of the Original Agreement, it is the parties’ desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way such material’s continued protection under attorney-client or any other applicable legal privilege. Specifically, the parties agree that (a) SPAC Parent and Purchaser shall not, and from and after the Company hereby agree thatClosing shall cause the Companies to not, seek to have any Existing Counsel disqualified from representing Seller or (prior to the Closing only) the Companies in the event a any dispute with respect (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or any of the Transactions arises after the Closing between transactions contemplated hereunder in whole or among SPAC and/or Sponsor, on the one handin part, and the Company(b) in connection with any dispute that may arise, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, Seller or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than SponsorParent or Purchaser, on the other hand, or, from and after the Sponsor Closing, Parent, Purchaser or the Companies, on the one hand, and Seller, on the other hand, Seller (and not any of the Companies) will have the sole and exclusive right to decide whether or not to waive any attorney-client or other applicable privilege that may assert apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or prior to the Closing. Except with respect to any existing or pending litigation or administrative proceedings, or any internal investigations relating to circumstances that could result in either of the foregoing, for which the parties shall cooperate in good faith to share attorney-client privilege, upon and after the Closing, (i) Seller and its Affiliates (and not the Companies) shall be the sole holders of the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such and any other applicable legal privilege with respect to Privileged SPAC Deal Communications without the prior written consent engagement of Existing Counsel, and none of the Sponsor. In the event that SPACCompanies shall be a holder thereof, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise (ii) to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC of Existing Counsel constitute property of its clientsthe client, only Sponsor Seller and its Affiliates (and not the Companies) shall hold such property rights rights, and Prior SPAC (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files or other materials or to any Privileged SPAC Deal Communications of the Companies by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, Existing Counsel and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges Companies or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation otherwise. [Remainder of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.page intentionally left blank]
Appears in 1 contract
Sources: Stock Purchase Agreement (Entercom Communications Corp)
Conflicts and Privilege. (a) SPAC Buyer, on behalf of itself and its Affiliates, including, for all periods from and after the Closing, the Company Group (collectively, the “Buyer Related Parties”), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one handwaives, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other handagrees not to allege, any legal counsel (including DLA Piper LLP) claim that represented SPAC and/or Sponsor prior to the Closing J▇▇▇▇ Day (“Prior SPAC Seller’s Counsel”) may represent Sponsor has a conflict of interest or is otherwise prohibited from representing Seller or any of its Affiliates or Representatives (“Seller Related Parties”) in such any post-Closing matter or dispute with any of the Buyer Related Parties related to or involving this Agreement (including the negotiation hereof) or the transactions contemplated hereby, even though the interests of Sponsor one or more of the Seller Related Parties in such matter or dispute may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, the interests of one or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information more of the Company following the Closing.
(b) The Company further agreesBuyer Related Parties. Buyer, on behalf of itself andand all other Buyer Related Parties, after acknowledges and agrees that Seller’s, and its Affiliates’ (including, for the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelypre-Closing period, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by SponsorCompany Group), shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing privilege, attorney work-product protection and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsorinvolving the actual and any proposed sale of the Company Group or any other transaction contemplated by this Agreement, and all information and documents covered by such privilege, protection or expectation shall be retained and controlled by Sponsor Seller and its Affiliates, and may be waived only by Seller. Buyer and Seller acknowledge and agree that (i) the foregoing attorney-client privilege, work-product protection and expectation of client confidence shall not pass to be controlled, owned, used, waived or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
the Buyer Related Parties and (cii) Notwithstanding the foregoing, in the event that of a dispute arises between SPAC, PubCo or any of the Quantisimo CompaniesBuyer Related Parties, on the one hand, and a third party other than SponsorThird Party, on the other hand, or any other circumstance in which a Third Party requests or demands that any of the Sponsor may Buyer Related Parties produce privileged materials or attorney work-product of Seller or its Affiliates, Buyer shall cause the applicable Buyer Related Parties to assert the such attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself Seller or its Affiliates to prevent disclosure of privileged materials or attorney work-product to such Third Party. Buyer and SPAC, PubCo Seller acknowledge and the Quantisimo Companies after the Closing, (i) to the extent agree that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or and expectation of client confidence applicable involving general business matters related to any such materials or communications, (ii) not the Company Group and arising prior to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has for the right to waive benefit of Seller and its Affiliates, on the attorney-client or one hand, and the Buyer Related Parties, on the other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would hand, shall be subject to a joint privilege and protection between such parties, which parties shall have equal right to assert all such joint privilege and protection, and no such joint privilege or protection if they were being requested in a proceeding may be waived by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s Seller or its Affiliates without the prior representation written consent of the Company and Buyer, or (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectivelyBuyer Related Parties without the prior written consent of Seller; provided, however, that any such privileged materials or protected attorney work-product information involving general business matters, whether arising prior to or after the Closing Date, with respect to any matter for which a Party has an indemnification obligation hereunder, shall be subject to the sole control of such Party, which shall be solely entitled to control the assertion or waiver of the privilege or protection, whether or not such information is in the possession of or under the control of such Party. This Section 13.17 is for the benefit of Seller, the “Company Advised Parties”) Seller Related Parties and Seller’s Counsel, and Seller Related Parties and Seller’s Counsel are express third party beneficiaries of this Section 13.17. This Section 13.17 shall be irrevocable, and no term of this Section 13.17 may be amended, waived or modified, except in accordance with Section 13.10 and with the prior to written consent of the Seller Related Party affected thereby. This Section 13.17 shall survive the Closing and after the Closingshall remain in effect indefinitely.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Willdan Group, Inc.)
Conflicts and Privilege. (a) SPAC Acquiror, the Companies and the Company Holder hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC Acquiror, the SCH Designated Directors and/or the Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubCompanies and/or the Holder, on the other hand, any legal counsel (including DLA Piper Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP) that represented SPAC Acquiror, the SCH Designated Directors and/or the Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent the SCH Designated Directors and/or the Sponsor in such dispute even though the interests of the SCH Designated Directors and/or the Sponsor may be directly adverse to SPACthe Acquiror, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC Acquiror, the SCH Designated Directors and/or the Sponsor. All communication Acquiror, the Companies and the Holder further agree that, as to all legally privileged communications prior to the Closing between or among Prior SPAC Counselany legal counsel (including Skadden, on Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP) that represented Acquiror, the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after SCH Designated Directors and/or Sponsor prior to the Closing and any one or more such Persons that relate in any way to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall SCH Designated Directors and may be controlled by the Sponsor such SCH Designated Directors, and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following Acquiror (after giving effect to the Closing), the Companies and the Holder; provided that the SCH Designated Directors shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by the Company Companies prior to the Closing with SPAC Acquiror, the Sponsor or Sponsor the SCH Designated Directors (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingSurviving Companies.
(b) The Company further agreesAcquiror and the Companies hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among the Holder Designated Directors and/or the Holder, on behalf of itself andthe one hand, after and the ClosingCompanies and/or Acquiror, on behalf the other hand, any legal counsel (including L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP) that represented the Holder Designated Directors and/or the Holder prior to the Closing may represent the Holder Designated Directors and/or the Holder in such dispute even though the interests of SPACthe Holder Designated Directors and/or the Holder may be directly adverse to the Acquiror and/or the Companies, PubCo and even though such counsel may have represented Acquiror and/or the Companies in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror, the Companies, the Holder Designated Directors and/or the Holder. Acquiror and the Quantisimo CompaniesCompanies further agree that, that as to all legally privileged communications in any form or format whatsoever prior to the Closing between or among any of Prior SPAC Counsellegal counsel (including L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP) that represented the Companies, SPAC the Holder Designated Directors and/or the Holder prior to the Closing and any one or the Sponsor, or any of their respective Representatives more such Persons that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectivelytransactions contemplated hereby, the “SPAC Deal Communications”) shall be deemed attorney/client privilege and the expectation of client confidence belongs to be retained the Holder and/or the Holder Designated Directors and owned collectively by Sponsor, shall may be controlled by Sponsor the Holder and/or such SCH Designated Directors, and shall not pass to or be claimed or controlled by SPAC, PubCo Acquiror (after giving effect to the Closing) or the Quantisimo Companies after Companies; provided that the Closing. All SPAC Deal Communications that are attorney-client privileged (Holder and/or the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and Holder Designated Directors shall not pass waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or be claimed by SPAC, PubCo defense of their respective rights or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) obligations existing under this Agreement. Notwithstanding the foregoing, in any privileged communications or information shared by Acquiror prior to the event that a dispute arises between SPAC, PubCo Closing with the Holder or the Quantisimo Companies, on Holder Designated Directors (in any capacity) under a common interest agreement shall remain the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure privileged communications or information of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Companies.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Social Capital Hedosophia Holdings Corp.)
Conflicts and Privilege. (a) SPAC Acquiror and the Company Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Closing between or among SPAC (x) the Sponsor, the stockholders or holders of other equity interests of Acquiror or the Sponsor and/or Sponsorany of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Corporation) (collectively, the “Acquiror Group”), on the one hand, and (y) the Company, PubCo, SPAC Merger Sub, Target Merger SubSurviving Corporation and/or any member of the Syniverse Group, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ (“Prior SPAC CounselWachtell”) may represent the Sponsor and/or any other member of the Acquiror Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACthe Surviving Corporation, and even though such counsel may have represented SPAC Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Corporation and/or the Sponsor. All communication Acquiror and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement or the transactions contemplated hereby) between or among Prior SPAC CounselAcquiror, the Sponsor and/or any other member of the Acquiror Group, on the one hand, and SPAC or SponsorWachtell, on the other handhand (the “Wachtell Privileged Communications”), shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Merger and belong solely to the SponsorAcquiror Group after the Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC Acquiror or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following Surviving Corporation. Acquiror and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person (other than the Acquiror Group) may use or rely on any of the Wachtell Privileged Communications, whether located in the records or email server of the Acquiror, Surviving Corporation or their respective Subsidiaries, in any Action against or involving any of the parties after the Closing, and Acquiror and the Company agree not to assert that any privilege has been waived as to the Wachtell Privileged Communications, by virtue of the Merger.
(b) The Company further agreesAcquiror and the Company, on behalf of itself andtheir respective successors and assigns (including, after the Closing, on behalf of SPACthe Surviving Corporation), PubCo and hereby agree that, in the Quantisimo Companies, that all communications in any form event a dispute with respect to this Agreement or format whatsoever the transactions contemplated hereby arises after the Closing between or among any (x) the stockholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, or Company and any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal Syniverse Group”), on the one hand, and (y) the Surviving Corporation and/or any member of the Acquiror Group, on the other hand, any legal counsel, including Debevoise & ▇▇▇▇▇▇▇▇ LLP (“Debevoise”) that represented the Company prior to the Closing may represent any member of the Syniverse Group in such dispute even though the interests of such Persons may be directly adverse to the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Corporation. Acquiror and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement or the transactions contemplated hereby) between or among the Company and/or any member of the Syniverse Group, on the one hand, and Debevoise, on the other hand (the “Debevoise Privileged Communications”) ), the attorney/client privilege and the expectation of client confidence shall be deemed survive the Merger and belong to be retained and owned collectively by Sponsorthe Syniverse Group after the Closing, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Surviving Corporation. Notwithstanding the foregoing, any privileged communications or information shared by Acquiror prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Surviving Corporation. Acquiror and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person (other than the Syniverse Group) may use or rely on any of the Debevoise Privileged Communications, whether located in the event that a dispute arises between SPAC, PubCo records or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure email server of the Privileged SPAC Deal Communications to such third party; providedAcquiror, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo Surviving Corporation or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (andtheir respective Subsidiaries, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and Action against or involving any of the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies parties after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo Acquiror and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees agree not to assert that any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation privilege has been waived as to the Debevoise Privileged Communications, by virtue of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the ClosingMerger.
Appears in 1 contract
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC and/or Sponsoror the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “Voyager Group”), on the one hand, and the Company, (y) PubCo, SPAC Merger Sub, Target Merger Subthe Surviving Corporation or any member of the Veraxa Group, on the other hand, any legal counsel counsel, including Winston & S▇▇▇▇▇ LLP (including DLA Piper LLP“Winston”), B▇▇▇▇▇▇▇ Ltd. (“B▇▇▇▇▇▇▇”) and Noerr Partnerschaftsgesellschaft mbB (“Noerr”) (each an “Acquirer Counsel”), that represented SPAC and/or or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Voyager Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or PubCo, the Surviving Corporation or the Sponsor. All communication The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Voyager Group, on the one hand, and SPAC or Sponsorany Acquirer Counsel, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorVoyager Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of PubCo and the Company following the ClosingSurviving Corporation.
(b) The Company further agreesCompany, SPAC and the Acquisition Entities, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever Acquisition Closing between or among any (x) the shareholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, Company or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than PubCo or the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsVeraxa Group”), on the one hand, and (y) the Surviving Corporation or any member of the Voyager Group, on the other hand, any legal counsel, including D▇▇▇▇ ▇▇▇▇▇▇ LLP and W▇▇▇▇▇ ▇▇▇▇ Ltd. (“WW”), and E▇▇▇▇ S▇▇▇▇▇▇▇ Commichau (“E▇▇▇▇”; together with D▇▇▇▇ ▇▇▇▇▇▇ and WW, and each, “Target Counsel”) that represented the Company prior to the Acquisition Closing may represent any member of the Veraxa Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Veraxa Group, on the one hand, and any Target Counsel, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe Veraxa Group after the Acquisition Closing, shall be controlled by Sponsor and shall not pass to or be claimed or controlled by SPAC, PubCo or the Quantisimo Companies after the ClosingSurviving Corporation. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in any privileged communications or information shared by SPAC or Sponsor prior to the event that Acquisition Closing with the Company under a dispute arises between SPAC, common interest agreement shall remain the privileged communications or information of PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (Voyager Acquisition Corp./Cayman Islands)
Conflicts and Privilege. Each of the Parties hereto acknowledges and agrees that ▇▇▇▇▇▇▇ Procter LLP (a“▇▇▇▇▇▇▇”) SPAC has acted as counsel to the Company Entities, their Subsidiaries and the Seller in connection with the negotiation of this Agreement and consummation of the transactions contemplated hereby. The Purchaser hereby consents and agrees to, and irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with, and agrees to cause the Company hereby Entities and their Subsidiaries to consent and agree thatto and irrevocably waive and not assert any conflict of interest arising from or in connection with, in ▇▇▇▇▇▇▇ representing the event a dispute Seller after the Closing, including with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor disputes in such dispute even though which the interests of Sponsor the Seller may be directly adverse to SPAC, the Purchaser and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by its Affiliates (including the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) Entities and their Subsidiaries). The Company Purchaser further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo the Company Entities and the Quantisimo Companiestheir Subsidiaries, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel▇▇▇▇▇▇▇, SPAC or the SponsorSeller, the Company Entities and/or any of their Subsidiaries, or any of their respective Representatives directors, officers, employees or other representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Transaction (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by SponsorSeller, shall be controlled by Sponsor Seller, and shall not pass to or be claimed by SPACthe Purchaser, PubCo the Company Entities or the Quantisimo Companies after the Closingany of their Subsidiaries. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to SponsorSeller, shall be controlled by Sponsor Seller and shall not pass to or be claimed by SPACPurchaser, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor Company Entities or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) their Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between SPACthe Purchaser, PubCo any Company Entity or the Quantisimo Companiesa Subsidiary, on the one hand, and a third party other than Sponsorthe Seller, on the other hand, the Sponsor Purchaser, the Company Entities or the Subsidiaries may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such - 52 - third party; provided, however, that neither SPACnone of the Purchaser, PubCo, nor the Quantisimo Companies Company Entities or any Subsidiary may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSeller. In the event that SPACthe Purchaser, PubCo any Company Entity or the Quantisimo Companies any of their Subsidiaries is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo the Purchaser shall as promptly as practicable (and, in any event, within two five (25) Business Days) after becoming aware thereof notify Sponsor Seller in writing (including by making specific reference to this Section 11.18Section) so that Sponsor Seller can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree Purchaser agrees to use all commercially reasonable efforts (at the sole expense of Seller) to assist therewith.
(d) . To the extent that files or other materials maintained by Prior SPAC Counsel ▇▇▇▇▇▇▇ constitute property of its clients, only Sponsor Seller shall hold such property rights and Prior SPAC Counsel ▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel▇▇▇▇▇▇▇, on the one hand, and SPAC, PubCo any Company Entity or any Quantisimo Companies after the Closingits Subsidiaries, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) hand. The Purchaser agrees that it will not, and that it will cause the Company agrees on behalf of itself Entities and SPAC, PubCo and the Quantisimo Companies after the Closingtheir Subsidiaries not to, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to intentionally access or use the SPAC Privileged Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company Seller waive the attorney-client or other privilege, or by otherwise asserting that SPACthe Purchaser, PubCo any Company Entity or any of the Quantisimo Companies after the Closing Company Entities’ Subsidiaries has the right to waive the attorney-client or other privilege and or (iiiii) not to seek to obtain the SPAC Privileged Deal Communications from Prior SPAC Counsel so long ▇▇▇▇▇▇▇. Notwithstanding the foregoing, Purchaser shall not be in breach of this Agreement solely as such SPAC a result of inadvertent access to any Privileged Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto Communications. Seller acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted agree that, except as counsel otherwise set forth above relating to the Privileged Deal Communications, all other confidential and privileged information relating to the Company in various matters involving a range of issues Entities and as counsel its Subsidiaries belong to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements Entities and the Transactions. In connection with any matter or dispute under this AgreementSubsidiaries and, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after following the Closing., Purchaser shall have full rights with respect thereto. [Signatures on Next Page]
Appears in 1 contract
Sources: Stock Purchase Agreement
Conflicts and Privilege. It is acknowledged by each of the parties hereto that the Stockholders’ Representative (aon behalf of the Stockholders) SPAC has retained ▇▇▇▇▇ Lovells US LLP (“▇▇▇▇▇”) to act as its counsel in connection with the Transactions. Purchaser, Merger Subsidiary and the Company Surviving Corporation hereby agree that, that in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC Purchaser, the Surviving Corporation and/or Sponsortheir respective Affiliates, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubStockholders’ Representative and the Stockholders, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) ▇▇▇▇▇ may represent Sponsor the Stockholders’ Representative and/or the Stockholders in such dispute even though the interests of Sponsor the Stockholders’ Representative and/or the Stockholders may be directly adverse to SPACPurchaser, the Surviving Corporation and/or their respective Affiliates, and even though such counsel ▇▇▇▇▇ may have represented SPAC the Company in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Surviving Corporation. Purchaser, the Surviving Corporation and/or Sponsor. All communication between or their respective Affiliates further agree that, as to all communications among Prior SPAC Counsel▇▇▇▇▇, on the one handCompany, and SPAC or Sponsorthe Stockholders’ Representative and/or any Stockholder that relate directly to the Transactions prior to the Closing, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Stockholders’ Representative and the Stockholders and may be controlled by the Sponsor Stockholders’ Representative and Stockholders and shall not pass to or be claimed by CompanyPurchaser, SPACMerger Subsidiary, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPACPurchaser, PubCo or and/or the Quantisimo CompaniesSurviving Corporation, on the one hand, and a third party other than Sponsorthe Stockholders’ Representative or a Stockholder, on the other hand, Purchaser and the Sponsor Surviving Corporation may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communications to such third party; provided, however, that neither SPAC, PubCo, Purchaser nor the Quantisimo Companies Surviving Corporation may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithStockholders’ Representative.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Appfolio Inc)
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (a) SPAC which, for this purpose, shall be deemed to include the Company and the Company hereby agree Subsidiaries) agrees that, notwithstanding any current or prior representation of the Company and the Subsidiaries by Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and any of his Affiliates in any matters and disputes adverse to Buyer, the Company and/or any Subsidiary that either are existing on the Effective Date or arise in the event future. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) hereby waives any claim that Buyer, the Company or any Subsidiary has or may have that Sidley Austin LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and agrees that, if a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer, the Company or among SPAC and/or Sponsorany Subsidiary and Seller or any of his Affiliates, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) then Sidley Austin LLP may represent Sponsor Seller or such Affiliate in such dispute even though the interests of Sponsor Seller or such Affiliate may be directly adverse to SPACBuyer, the Company and/or such Subsidiary and even though such counsel Sidley Austin LLP may have represented SPAC the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, or may on behalf of itself and its Affiliates (which, for this purpose, shall be handling ongoing matters for SPAC and/or Sponsor. All communication deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or among Prior SPAC CounselSidley Austin LLP and Seller, on the one handCompany, and SPAC or Sponsorany Subsidiary and/or any of their respective Affiliates that occur prior to the Closing, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by CompanyBuyer, SPAC, PubCo the Company or the Surviving Corporation following the Closingany Subsidiary. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that if a dispute arises between SPACBuyer, PubCo the Company or the Quantisimo Companies, on the one hand, any Subsidiary and a third party other than SponsorSeller or an Affiliate of Seller after the Closing, on then the other hand, Company or any such Subsidiary (to the Sponsor extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by Sidley Austin LLP; provided, however, provided that neither SPAC, PubCo, nor if the Quantisimo Companies may Company or the Subsidiaries elect to waive such privilege with respect to Privileged SPAC Deal Communications without privilege, the prior written consent of the Sponsor. In the event that SPAC, PubCo Company or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithsuch waiver.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. Each of the Parties hereby agrees on behalf of their respective successors and assigns (aincluding after the Closing, the Second Merger Surviving Company) (all such parties, the “Acknowledging Parties”), that any legal counsel (including ▇▇▇▇ & ▇▇▇▇ LLP (“Loeb”)) that represented SPAC and or the Company hereby agree thatSponsor prior to the Closing, may represent the Sponsor or SPAC or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Second Merger Surviving Company) (collectively, the “Sponsor Group”), in the event a dispute each case, solely in connection with respect any Action or obligation arising out of or relating to this Agreement, any Ancillary Agreement or the Transactions arises after transactions contemplated hereby or thereby, notwithstanding its prior representation of the Closing Sponsor, SPAC and its Subsidiaries, or other Acknowledging Parties. Each of the Parties, on behalf of itself and the Acknowledging Parties, hereby agrees that all legally privileged communications, between the Sponsor, SPAC, or among SPAC and/or Sponsorits Subsidiaries, or any other member of the Sponsor Group, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub▇▇▇▇ (in its role as counsel to SPAC), on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor made prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor Closing, in such connection with the negotiation, preparation, execution, delivery and performance under, or any dispute even though or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the interests of Sponsor may be directly adverse transactions contemplated hereby or thereby, are privileged communications that do not pass to SPACthe Second Merger Surviving Company notwithstanding the Mergers, and even though such counsel may have represented SPAC in a matter substantially related to such disputeinstead survive, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, remain with and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be are controlled by the Sponsor Group (the “Privileged Communications”), without any waiver thereof. The Parties, together with any of their successors or assigns, agree that no Person may use or rely on any of the Privileged Communications, whether located in the records or email server of the Second Merger Surviving Company and shall not pass to its Subsidiaries, in any Action against or be claimed by Company, SPAC, PubCo or involving any of the Surviving Corporation following Parties after the Closing, and the Parties agree not to assert that any privilege has been waived as to the Privileged Communications, by virtue of the Mergers. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the ClosingSecond Merger Surviving Company.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement (NewHold Investment Corp. III)
Conflicts and Privilege. (a) The Company, SPAC and the Company Acquisition Entities, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the Transactions transactions contemplated hereby arises after the Acquisition Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of SPAC and/or Sponsoror the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (other than PubCo or the Surviving Corporation) (collectively, the “Altimeter Group”), on the one hand, and the Company, (y) PubCo, SPAC Merger Sub, Target Merger Subthe Surviving Corporation or any member of the Grab Group, on the other hand, any legal counsel counsel, including Ropes & Gray LLP (including DLA Piper LLP) “Ropes”), that represented SPAC and/or or the Sponsor prior to the Acquisition Closing (“Prior SPAC Counsel”) may represent the Sponsor or any other member of the Altimeter Group, in such dispute even though the interests of Sponsor such Persons may be directly adverse to SPACPubCo or the Surviving Corporation, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or PubCo, the Surviving Corporation or the Sponsor. All communication The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among Prior SPAC CounselSPAC, the Sponsor or any other member of the Altimeter Group, on the one hand, and SPAC or SponsorRopes, on the other hand, shall remain privileged after the Closing and the attorney/client privilege and the expectation of client confidence relating thereto shall survive the Mergers and belong solely to the SponsorAltimeter Group after the Acquisition Closing, shall be controlled by the Sponsor and shall not pass to or be claimed or controlled by Company, SPAC, PubCo or the Surviving Corporation following the ClosingCorporation. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Acquisition Closing with SPAC or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of PubCo and the Company following the ClosingSurviving Corporation.
(b) The Company further agreesCompany, SPAC and the Acquisition Entities, on behalf of itself andtheir respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever Acquisition Closing between or among any (x) the shareholders or holders of Prior SPAC Counsel, SPAC or other equity interests of the Sponsor, Company or any of their respective Representatives that relate in any way to directors, members, partners, officers, employees or Affiliates (other than PubCo or the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement Surviving Corporation) (collectively, the “SPAC Deal CommunicationsGrab Group”), on the one hand, and (y) the Surviving Corporation or any member of the Altimeter Group, on the other hand, any legal counsel, including Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“Skadden”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) that represented the Company prior to the Acquisition Closing may represent any member of the Grab Group in such dispute even though the interests of such Persons may be directly adverse to PubCo and the Surviving Corporation, and even though such counsel may have represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for PubCo and the Surviving Corporation. The Company, SPAC and the Acquisition Entities, on behalf of their respective successors and assigns (including, after the Acquisition Closing, the Surviving Corporation), further agree that, as to all legally privileged communications prior to the Acquisition Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby) between or among the Company or any member of the Grab Group, on the one hand, and Skadden or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on the other hand, the attorney/client privilege and the expectation of client confidence shall be deemed survive the Mergers and belong to be retained and owned collectively by Sponsorthe Grab Group after the Acquisition Closing, shall be controlled by Sponsor and shall not pass to or be claimed or controlled by SPAC, PubCo or the Quantisimo Companies after the ClosingSurviving Corporation. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in any privileged communications or information shared by SPAC or Sponsor prior to the event that Acquisition Closing with the Company under a dispute arises between SPAC, common interest agreement shall remain the privileged communications or information of PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSurviving Corporation.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Business Combination Agreement
Conflicts and Privilege. (a) SPAC and Each of the Company Parties hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsoragrees, on the one handits own behalf and on behalf of its directors, managers, members, partners, officers, employees and the CompanyAffiliates, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing each of W▇▇▇▇▇▇ ▇▇▇▇ & G▇▇▇▇▇▇▇▇ LLP (“Prior SPAC CounselWillkie”) and L▇▇▇▇▇ & W▇▇▇▇▇▇, LLP (“Latham”) may represent Sponsor serve as counsel to S1 Holdco, Protected and their respective Subsidiaries (individually and collectively, “Seller Group”) in such dispute even though connection with the interests negotiation, preparation, execution, delivery and performance of Sponsor may be directly adverse to SPACthis Agreement, the Transaction Agreements and the consummation of the transactions contemplated hereby and thereby, and even though that, following consummation of such transactions, Willkie and Latham (and any of their respective successors) may serve as counsel may have represented SPAC to Seller Group or any director, manager, member, partner, officer, employee or Affiliate of any member of Seller Group, in a matter substantially related connection with any Action or obligation arising out of or relating to such disputethis Agreement, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing Transaction Agreements and the privilege transactions contemplated hereby and the expectation thereby, notwithstanding such representation or any continued representation of client confidence relating thereto shall belong solely to the SponsorS1 Holdco, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, Protected or any of their respective Representatives that relate in any way to the negotiationSubsidiaries, documentation and consummation each of the Transactions or, beginning Parties (on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained its own behalf and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself its Affiliates) hereby consents thereto and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession irrevocably waives any conflict of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18interest arising therefrom, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing each of such parties shall assert cause any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable Affiliate thereof to any such materials or communications, (ii) not consent to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company irrevocably waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from such representation. The parties agree to take the steps necessary to ensure that any privilege attaching as a result of counsel representing S1 Holdco, Protected or any of their respective Subsidiaries in connection with (i) Prior Company Counsel’s prior representation this Agreement, the Transaction Agreements and the consummation of the Company transactions contemplated hereby and (ii) Prior Company Counsel’s representation of any member thereby shall survive the Closing and shall remain in effect, provided that such privilege from and after the Closing shall be controlled by S1 Holdco on behalf of the Quantisimo Companies Seller Group. As to any privileged attorney-client communications between counsel and S1 Holdco, Protected and any of their respective Subsidiaries in connection with this Agreement, the Transaction Agreements and the consummation of the transactions contemplated hereby and thereby prior to the Closing Date (collectively, the “Company Advised PartiesPrivileged Communications”) prior to and ), the Founders, T▇▇▇▇▇, ▇▇ Holdco, Protected, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no such party may use or rely on any of the Privileged Communications in any action against or involving any of the Parties after the Closing. In addition, if the Transactions are consummated, all Privileged Communications related thereto will become the property of (and be controlled by) S1 Holdco, Protected and their respective direct or indirect equityholders, and none of the Founders, Trebia or any of their respective Affiliates, Subsidiaries, successors or assigns shall retain any copies of such records or have any access to them.
Appears in 1 contract
Sources: Business Combination Agreement (Trebia Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each of the Parties hereto that the Securityholder Representative and the Majority Stockholder Entity has retained ▇▇▇▇▇▇▇ Procter LLP (a“▇▇▇▇▇▇▇”) SPAC to act as their counsel and as counsel to the Company in connection with the transactions contemplated hereby. The Purchaser and the Company hereby agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, any Purchaser Indemnified Party on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, Securityholder Representative and/or the Majority Stockholder Entity on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior with respect to the Closing (“Prior SPAC Counsel”) Transactions, ▇▇▇▇▇▇▇ may represent Sponsor the Securityholder Representative and the Majority Stockholder Entity in such dispute even though the interests of Sponsor the Securityholder Representative and the Majority Stockholder Entity may be directly adverse to SPACthe Purchaser Indemnified Parties (including the Company and each of its Subsidiaries), and even though such counsel ▇▇▇▇▇▇▇ may have represented SPAC the Company and/or its Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC the Company and/or Sponsorits Subsidiaries. All communication between or among Prior SPAC Counsel, on The Purchaser and the one handCompany further agree, and SPAC or Sponsoragree to cause all of the Company’s Subsidiaries to agree, on that, as to all communications, in any form whatsoever, (x) among ▇▇▇▇▇▇▇, the other handCompany, shall remain privileged the Subsidiaries of the Company, the Securityholder Representative and/or any Seller before Closing that relate in any way to the Transactions and (y) ▇▇▇▇▇▇▇, the Securityholder Representative and/or any Seller after Closing (collectively, (x) and (y), the Closing and “Communications”), the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Securityholder Representative and the Majority Stockholder Entity and may be controlled only by the Sponsor Securityholder Representative and the Majority Stockholder Entity and shall not pass to or be claimed by the Purchaser or any Purchaser Indemnified Party (including the Company and any Subsidiary of the Company, SPAC, PubCo or the Surviving Corporation following the Closing). Notwithstanding In connection with the foregoing, any privileged communications or information shared by Purchaser hereby irrevocably waives and agrees not to assert, and agrees to cause the Company and the Company’s Subsidiaries to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (a) ▇▇▇▇▇▇▇’▇ representation of the Company and/or the Company’s Subsidiaries prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain respect to the privileged communications or information of the Company following the Closing.
Transactions and (b) The Company further agrees, on behalf ▇▇▇▇▇▇▇’▇ representation of itself and, after the Closing, on behalf of SPAC, PubCo Stockholder Representative and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way Majority Stockholder Entity prior to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies may waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel ▇▇▇▇▇▇▇ constitute property of its clientsclients that are or relate to Communications, only Sponsor the Stockholder Representative and the Majority Stockholder Entity shall hold such property rights and Prior SPAC Counsel ▇▇▇▇▇▇▇ shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel▇▇▇▇▇▇▇, on the one hand, and SPACPurchaser, PubCo the Company or any Quantisimo Companies after the ClosingCompany’s Subsidiaries, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The hand. Purchaser agrees that it will not, and that it will cause the Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the ClosingCompany’s Subsidiaries not to, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo the Securityholder Representative or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.Majority
Appears in 1 contract
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company) agrees that, notwithstanding any current or prior representation of the Company and the Subsidiary by ▇▇▇▇▇ & Lardner LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall be allowed to represent Seller and each of its Affiliates in any matters and disputes adverse to Buyer, the Company and/or the Subsidiary that either are existing on the date hereof or arise in the future and relate to this Agreement and the transactions contemplated hereby. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiary) hereby (a) SPAC and waives any claim that Buyer, the Company hereby agree or the Subsidiary has or may have that ▇▇▇▇▇ & Lardner LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (b) agrees that, in the event if a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer, the Company or among SPAC and/or Sponsorthe Subsidiary and Seller or any of its Affiliates, on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger Sub, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) then ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may represent Sponsor Seller or such Affiliate in such dispute even though the interests of Sponsor Seller or such Affiliate may be directly adverse to SPACBuyer, the Company and/or the Subsidiary and even though such counsel ▇▇▇▇▇ & Lardner LLP may have represented SPAC the Company and the Subsidiary in a matter substantially related to such dispute, dispute or may be handling ongoing matters for SPAC Buyer, the Company and/or Sponsorthe Subsidiary. All communication Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiary), also agrees that, as to all communications between or among Prior SPAC Counsel▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Seller, on the one handCompany, the Subsidiary and/or any of their respective Affiliates that relate in any way to the transactions contemplated hereby and SPAC or Sponsoroccur prior to the Closing, on the other hand, shall remain privileged after the Closing and the attorney-client privilege and the expectation of client confidence relating thereto shall belong solely belongs to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by CompanyBuyer, SPAC, PubCo the Company or the Surviving Corporation following the ClosingSubsidiary. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that if a dispute arises between SPACBuyer, PubCo the Company or the Quantisimo Companies, on the one hand, Subsidiary and a third party other than SponsorSeller or an Affiliate of Seller after the Closing, on then the other hand, Company or the Sponsor Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third partyparty of confidential communications by ▇▇▇▇▇ & Lardner LLP; provided, however, that neither SPAC, PubCo, nor the Quantisimo Companies Company or the Subsidiary may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the Sponsor. In the event that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewithSeller.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. (a) SPAC and the Company hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among SPAC and/or Sponsor, on the one hand, and the Company, PubCo, SPAC Merger SubSub 1, Target Merger SubSub 2, on the other hand, that Loeb & Loeb LLP (or any legal counsel (including DLA Piper LLPof its successors) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Sponsor in such dispute even though the interests of Sponsor may be directly adverse to SPAC, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. All communication between or among Prior SPAC Counsel, on the one hand, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by Company, SPAC, PubCo or the Surviving Corporation following the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Caravelle Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Caravelle Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Caravelle Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that a dispute arises between SPAC, PubCo or the Quantisimo Caravelle Companies, on the one hand, and a third party other than Sponsor, on the other hand, the Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party; provided, however, that neither SPAC, PubCo, SPAC nor the Quantisimo Caravelle Companies may waive such privilege with respect to Privileged SPAC Company Deal Communications without the prior written consent of the SponsorSurviving Corporation. In the event that SPAC, PubCo or the Quantisimo Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Caravelle Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Caravelle Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Caravelle Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Caravelle Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Caravelle Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. ▇▇▇ ▇▇ Law Offices LLC has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of the Original Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (together with ▇▇▇ ▇▇ Law Office LLC, “Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Caravelle Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
(g) SPAC further agrees that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Caravelle Companies, or PubCo or the Acquisition Entities or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised Parties, shall be controlled by Surviving Corporation on behalf of the Caravelle Companies and shall not pass to or be claimed by SPAC. All Company Deal Communications that are attorney-client privileged (the “Privileged Company Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Surviving Corporation and the Company, shall be controlled by Surviving Corporation on behalf of the Company and shall not pass to or be claimed by SPAC; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(h) Notwithstanding the foregoing, in the event that a dispute arises between SPAC or the Caravelle Companies, PubCo or the Acquisition Entities, on the one hand, and a third party other than Sponsor, on the other hand, SPAC or the Caravelle Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications to such third party; provided, however, that neither SPAC nor the Caravelle Companies may waive such privilege with respect to Privileged Company Deal Communications without the prior written consent of Surviving Corporation. In the event that SPAC or the Caravelle Companies is legally required by Governmental Order or otherwise to access or obtain a copy of all or a portion of the Privileged Company Deal Communications, SPAC shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Surviving Corporation in writing (including by making specific reference to this Section 11.8) so that Surviving Corporation can seek a protective order and SPAC agrees to use all commercially reasonable efforts to assist therewith.
(i) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only Surviving Corporation and the Company Advised Parties shall hold such property rights and Prior Company Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Company Deal Communications by reason of any attorney-client relationship between Prior Company Counsel, on the one hand, and the Caravelle Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(j) SPAC agrees (i) to the extent that SPAC receives or takes physical possession of any Company Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties or any other Person, of the privileges or protections described in this Section 11.18, and (b) SPAC shall not assert any claim that any of the Company Advised Parties or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have Surviving Corporation waive the attorney-client or other privilege, or by otherwise asserting that SPAC has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pacifico Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each of the Parties that the Acquired Companies and Seller have retained McGuireWoods to act as their counsel in connection with the Transactions and that McGuireWoods has not acted as counsel for any other Person in connection with the Transactions and that no other Party or other Person has the status of a client of McGuireWoods in connection with the Transactions for conflict of interest or any other purposes as a result thereof. Buyer and the Acquired Companies, on behalf of themselves and each of their Affiliates, (a) SPAC hereby waive any claim they have or may have that McGuireWoods has a conflict of interest in connection with, or is otherwise prohibited from engaging in, such representation and the Company hereby (b) agree that, in the event that a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyer or among SPAC and/or Sponsorany of its Affiliates (including, from and after Closing, the Acquired Companies), on the one hand, and the Company, PubCo, SPAC Merger Sub, Target Merger SubSeller, on the other hand, any legal counsel (including DLA Piper LLP) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) McGuireWoods may represent Sponsor Seller in such dispute even though the interests interest of Sponsor any such party may be directly adverse to SPACBuyer or any of its Affiliates (including, from and after Closing, the Acquired Companies), and even though such counsel McGuireWoods may have represented SPAC the Acquired Companies in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsorthe Acquired Companies. All communication Buyer further agrees that, as to all communications between or among Prior SPAC CounselMcGuireWoods and Seller that relate in any way to the Transactions, on the one handattorney-client privilege, and SPAC or Sponsor, on the other hand, shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall and all other rights to any evidentiary privilege belong solely to the Sponsor, shall Seller and may be controlled by the Sponsor Seller and shall not pass to or be claimed by Company, SPAC, PubCo Buyer or the Surviving Corporation following the ClosingAcquired Companies. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with SPAC or Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company following the Closing.
(b) The Company further agrees, on behalf of itself and, after the Closing, on behalf of SPAC, PubCo and the Quantisimo Companies, that all communications in any form or format whatsoever between or among any of Prior SPAC Counsel, SPAC or the Sponsor, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the Transactions or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “SPAC Deal Communications”) shall be deemed to be retained and owned collectively by Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing. All SPAC Deal Communications that are attorney-client privileged (the “Privileged SPAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to Sponsor, shall be controlled by Sponsor and shall not pass to or be claimed by SPAC, PubCo or the Quantisimo Companies after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by the Sponsor or any of its Affiliates of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(c) Notwithstanding the foregoing, in the event that if a dispute arises between SPAC, PubCo Buyer or the Quantisimo Companies, on the one hand, Acquired Companies and a third party other than Sponsor, on the other handa Party after Closing, the Sponsor Acquired Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications confidential communication by McGuireWoods to such third party; provided, however, that neither SPAC, PubCo, nor the Quantisimo Acquired Companies may not waive such privilege with respect to Privileged SPAC Deal Communications without the prior written consent of the SponsorSeller. In the event Seller and Buyer further agree that SPAC, PubCo or the Quantisimo Companies is legally required by Governmental Order or otherwise to access or obtain a copy McGuireWoods and its partners and employees are third-party beneficiaries of all or a portion of the Privileged SPAC Deal Communications, PubCo shall as promptly as practicable (and, in any event, within two (2) Business Days) after becoming aware thereof notify Sponsor in writing (including by making specific reference to this Section 11.18) so that Sponsor can seek a protective order and SPAC, PubCo and the Quantisimo Companies agree to use all commercially reasonable efforts to assist therewith10.4.
(d) To the extent that files or other materials maintained by Prior SPAC Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior SPAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged SPAC Deal Communications by reason of any attorney-client relationship between Prior SPAC Counsel, on the one hand, and SPAC, PubCo or any Quantisimo Companies after the Closing, on the other hand so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(e) The Company agrees on behalf of itself and SPAC, PubCo and the Quantisimo Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the Quantisimo Companies receives or takes physical possession of any SPAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by Sponsor or any other Person, of the privileges or protections described in this Section 11.18, and (b) neither SPAC, PubCo nor the Quantisimo Companies after the Closing shall assert any claim that Sponsor or any other Person waived the attorney-client privilege, attorney work-product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the SPAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have SPAC, PubCo or any Quantisimo Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the Quantisimo Companies after the Closing has the right to waive the attorney-client or other privilege and (iii) not to seek to obtain the SPAC Deal Communications from Prior SPAC Counsel so long as such SPAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(f) Each of the parties hereto acknowledges and agrees that Rimon P.C. (“Prior Company Counsel”) has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement, the Ancillary Agreements and the Transactions. In connection with any matter or dispute under this Agreement, SPAC hereby irrevocably waives and agrees not to assert any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company and (ii) Prior Company Counsel’s representation of any member of the Quantisimo Companies (collectively, the “Company Advised Parties”) prior to and after the Closing.
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