Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the 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 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 arises after the Closing between Buyer, the Company or any Subsidiary and Seller or any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or among Sidley Austin LLP and Seller, the Company, any Subsidiary and/or any of their respective Affiliates that occur prior to the Closing, the attorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by Buyer, the Company or any Subsidiary. Notwithstanding the foregoing, if a dispute arises between Buyer, the Company or any Subsidiary and a third party other than Seller or an Affiliate of Seller after the Closing, then the Company or any such Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company or the Subsidiaries elect to waive such privilege, the Company or the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiver.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. Buyer(a) SPAC and the Acquisition Entities hereby agree on 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 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 the 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 any member of the Company Counsel WP Group, on the one hand, and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and BD&P, on the other hand, 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, ▇▇▇▇▇ & ▇▇▇▇ (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇”) and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt LLP (“Osler”) may represent the shareholders or holders of other equity interests of the Sponsor 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 the Company, on behalf of itself and its Affiliates the SPAC Counsel Waiving Parties, hereby consents thereto and irrevocably waives (whichand will not assert) any conflict of interest, for this purpose, shall be deemed breach of duty or any other objection arising from or relating to include the Company and the Subsidiaries) agrees that, notwithstanding any current Wachtell Lipton’s or ▇▇▇▇▇’▇ prior representation of the Company SPAC and the Subsidiaries by Sidley Austin LLPits Subsidiaries, Sidley Austin LLP shall be allowed to represent Seller and any or other SPAC Counsel Waiving Parties. Each of his Affiliates in any matters and disputes adverse to BuyerSPAC, the Company and/or any Subsidiary that either are existing on the date hereof or arise in the future. Buyer, on behalf of itself Acquisition Entities 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 arises after the Closing between Buyer, the Company or any Subsidiary and Seller or any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or among Sidley Austin LLP and Seller, the Company, for itself and the SPAC Counsel Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between SPAC or its Subsidiaries, or any Subsidiary and/or any other member of their respective Affiliates that occur the SPAC Counsel WP Group, on the one hand, and each of Wachtell Lipton and Osler, on the other hand, made prior to the Closing, in connection with the attorney-client privilege 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 expectation Transactions contemplated hereby or thereby, or any matter relating to any of client confidence belongs to Seller and may be controlled by Seller and shall the foregoing, are privileged communications that do not pass to SPAC, PubCo or be claimed the Company following the Closing, and instead survive, remain with and are controlled by Buyerthe SPAC Counsel WP Group (the “SPAC Counsel Privileged Communications”), without any waiver thereof. SPAC, the Company 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 Subsidiary. Notwithstanding of the foregoingSPAC Counsel Privileged Communications, if a dispute arises between Buyerwhether located in the records or email server of SPAC and its Subsidiaries, in any Action against or involving any of the Company or any Subsidiary and a third party other than Seller or an Affiliate of Seller parties after the Closing, then and SPAC, the Acquisition Entities and the Company or agree not to assert that any such Subsidiary (privilege has been waived as to the extent applicable) may assert SPAC Counsel Privileged Communications, by virtue of the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company or the Subsidiaries elect to waive such privilege, the Company or the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverTransactions.
Appears in 1 contract
Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Conflicts and Privilege. BuyerAcquiror, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) agrees Holder Representative hereby agree 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 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 event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between Buyeror among Acquiror, the Company or GPIAC Designated Directors and/or the Sponsor, on the one hand, and the Company, the Pre-Closing Holders, the Holder Representative and/or the Escrow Stockholders, on the other hand, any Subsidiary and Seller or any of his Affiliateslegal counsel (including Skadden, then Sidley Austin LLP Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP) that represented Acquiror, the GPIAC Designated Directors and/or the Sponsor prior to the Closing may represent Seller or such Affiliate the GPIAC Designated Directors and/or Sponsor in such dispute even though the interests of Seller or such Affiliate the GPIAC Designated Directors and/or Sponsor may be directly adverse to Buyerthe Acquiror, the Company and/or such Subsidiary and even though Sidley Austin LLP such counsel may have represented the Company or such Subsidiary Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror, the GPIAC Designated Directors and/or the Sponsor. BuyerAcquiror, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees Holder Representative further agree that, as to all legally privileged communications prior to the Closing between or among Sidley Austin LLP and Sellerany legal counsel (including Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP) that represented Acquiror, the Company, any Subsidiary GPIAC Designated Directors and/or any of their respective Affiliates that occur the Sponsor prior to the ClosingClosing 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 belongs to Seller the GPIAC Designated Directors and may be controlled by Seller such GPIAC Designated Directors, and shall not pass to or be claimed or controlled by BuyerAcquiror (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 any Subsidiarydefense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, if a dispute arises between Buyer, any privileged communications or information shared by the Company or any Subsidiary and a third party other than Seller or an Affiliate of Seller after the Closing, then the Company or any such Subsidiary (prior to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company Closing with Acquiror, Sponsor or the Subsidiaries elect to waive such privilege, GPIAC Appointed Directors (in any capacity) under a common interest agreement shall remain the Company privileged communications or information of the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverSurviving Corporation.
Appears in 1 contract
Sources: Merger Agreement (GP Investments Acquisition Corp.)
Conflicts and Privilege. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the 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 Effective Date or arise in the 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 arises after the Closing between Buyer, the Company or any Subsidiary and Seller or any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or among Sidley Austin LLP and Seller, the Company, any Subsidiary and/or any of their respective Affiliates that occur prior to the Closing, the attorney-client privilege and the expectation of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by Buyer, the Company or any Subsidiary. Notwithstanding the foregoing, if a dispute arises between Buyer, the Company or any Subsidiary and a third party other than Seller or an Affiliate of Seller after the Closing, then the Company or any such Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company or the Subsidiaries elect to waive such privilege, the Company or the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiver.
Appears in 1 contract
Sources: Stock Purchase Agreement (GAIN Capital Holdings, Inc.)
Conflicts and Privilege. Buyer, on behalf of itself (a) SPAC and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) agrees hereby agree 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 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 event a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyeror among SPAC and/or Sponsor, on the Company or any Subsidiary one hand, and Seller the Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Loeb & Loeb LLP (or any of his Affiliates, then Sidley Austin LLP its successors) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Seller or such Affiliate Sponsor in such dispute even though the interests of Seller or such Affiliate Sponsor may be directly adverse to BuyerSPAC, the Company and/or such Subsidiary and even though Sidley Austin LLP such counsel may have represented the Company or such Subsidiary SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications All communication between or among Sidley Austin LLP Prior SPAC Counsel, on the one hand, and SellerSPAC or Sponsor, on the Companyother hand, any Subsidiary and/or any of their respective Affiliates that occur prior to shall remain privileged after the Closing, Closing and the attorney-client privilege and the expectation of client confidence belongs relating thereto shall belong solely to Seller and may the Sponsor, shall be controlled by Seller the Sponsor and shall not pass to or be claimed by BuyerCompany, SPAC, PubCo or the Company or any SubsidiarySurviving Corporation following the Closing. Notwithstanding the foregoing, if 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 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 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 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 BuyerSPAC, PubCo or the Company or any Subsidiary Caravelle Companies, on the one hand, and a third party other than Seller or an Affiliate of Seller after Sponsor, on the Closingother hand, then the Company or any such Subsidiary (to the extent applicable) Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party 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 confidential Surviving Corporation. In the event that SPAC, PubCo 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 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 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 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 Caravelle Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the 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 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 Sidley Austin LLP; provided seeking to have SPAC, PubCo or any Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the 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 ▇▇▇ ▇▇ 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 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 Subsidiaries elect 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 such privilege, 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 the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverprotection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Conflicts and Privilege. Buyer, on behalf of itself (a) Acquiror and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) agrees hereby agree 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 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 event a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyeror among Acquiror, Merger Sub and/or Sponsor, on the Company or one hand, and the Company, on the other hand, any Subsidiary legal counsel (including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Seller or any of his Affiliates, then Sidley Austin LLP Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP) that represented Acquiror and/or Sponsor prior to the Closing (“Prior Acquiror Counsel”) may represent Seller or such Affiliate Sponsor in such dispute even though the interests of Seller or such Affiliate Sponsor may be directly adverse to BuyerAcquiror, the Company and/or such Subsidiary and even though Sidley Austin LLP such counsel may have represented the Company or such Subsidiary Acquiror in a matter substantially related to such dispute, or may be handling ongoing matters for Acquiror and/or Sponsor. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications All communication between or among Sidley Austin LLP Prior Acquiror Counsel, on the one hand, and SellerAcquiror, Merger Sub or Sponsor, on the Companyother hand, any Subsidiary and/or any of their respective Affiliates that occur prior to shall remain privileged after the Closing, Closing and the attorney-client privilege and the expectation of client confidence belongs relating thereto shall belong solely to Seller and may the Sponsor, shall be controlled by Seller the Sponsor and shall not pass to or be claimed by BuyerCompany, Acquiror or the Company or any SubsidiarySurviving Corporation following the Closing. Notwithstanding the foregoing, if any privileged communications or information shared by the Company prior to the Closing with 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 Acquiror and the AEye Companies, that all communications in any form or format whatsoever between or among any of Prior Acquiror Counsel, 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 “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 Acquiror or the AEye Companies after the Closing. All Acquiror Deal Communications that are attorney-client privileged (the “Privileged 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 Acquiror or the 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 BuyerAcquiror or the AEye Companies, on the Company or any Subsidiary one hand, and a third party other than Seller or an Affiliate of Seller after Sponsor, on the Closingother hand, then the Company or any such Subsidiary (to the extent applicable) Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged Acquiror Deal Communications to such third party party. In the event that Acquiror or the AEye Companies is legally required by Governmental Order or otherwise to access or obtain a copy of confidential all or a portion of the Privileged Acquiror Deal Communications, Acquiror shall immediately (and, in any event, within two (2) Business Days) notify Sponsor in writing (including by making specific reference to this Section 10.18) so that Sponsor can seek a protective order and Acquiror and the AEye Companies agree to use all commercially reasonable efforts to assist therewith.
(d) To the extent that files or other materials maintained by Prior Acquiror Counsel constitute property of its clients, only Sponsor shall hold such property rights and Prior Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged Acquiror Deal Communications by reason of any attorney-client relationship between Prior Acquiror Counsel, on the one hand, and Acquiror or any 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 Acquiror 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 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 10.18, and (b) neither Acquiror nor the 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 Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by Sidley Austin LLP; provided seeking to have Acquiror or any AEye Company 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 Acquiror Deal Communications from Prior Acquiror Counsel so long as such 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 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, Acquiror hereby irrevocably waives and agrees not to 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 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 Subsidiaries elect 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 such privilege, 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 the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverprotection 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. BuyerRecognizing that K&L Gates LLP has acted as legal counsel to Signing Sellers and the 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 behalf of itself their own behalf, and its Affiliates (whichPurchaser hereby waives, for this purpose, shall be deemed to include the Company and the Subsidiaries) agrees that, notwithstanding any current or prior conflicts that may arise in connection with K&L Gates LLP’s representation of the Company Signing Sellers (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 “Replacement Seller” or arise in the future. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries“Replacement Sellers,” if applicable) 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 arises after the Closing between BuyerClosing. The Parties also acknowledge that the Acquired Entities have agreed, the Company or any Subsidiary and Seller or any of his AffiliatesPurchaser also agrees, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between among K&L Gates LLP, on the one hand, and the Acquired Entities (or among Sidley Austin LLP and Sellerany of them), the Company, any Subsidiary and/or Signing Sellers (or any of their respective Affiliates them), or the Acquired Entities and Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), on the other hand, that occur prior relate in any way to this Agreement and to the Closingtransactions under or related to this Agreement and are in fact subject to attorney-client privilege, the attorney-client privilege and the expectation of client confidence belongs belong to Seller Signing Sellers (and may “Replacement Seller” or “Replacement Sellers,” if applicable), shall be owned and controlled by Seller Signing Sellers (and “Replacement Seller” or “Replacement Sellers,” if applicable), and shall not pass to or be claimed by Buyer, the Company or any Subsidiary. Notwithstanding the foregoing, if a dispute arises between Buyer, the Company or any Subsidiary and a third party other than Seller or an Affiliate of Seller after the Closing, then the Company or any such Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company Purchaser or the Subsidiaries elect to waive such privilege, Acquired Entities nor be retained by the Company or the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverAcquired Entities.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Enviva Partners, LP)
Conflicts and Privilege. BuyerIt is acknowledged by each of the parties hereto that the Sellers’ Representative has retained D▇▇▇▇ ▇▇▇▇▇▇ LLP (“DM”) to act as its counsel in connection with the transactions contemplated hereby. Buyer hereby agrees that in the event of a dispute under this Agreement, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company Ancillary Documents and the Subsidiaries) agrees that, notwithstanding any current documents and instruments contemplated hereby and thereby related to the transactions contemplated hereby 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 thereby 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 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 arises after the Closing between BuyerBuyer Indemnified Parties, on the Company or any Subsidiary one hand, and Seller or any of his Affiliatesthe Sellers’ Representative and Sellers, then Sidley Austin LLP on the other hand, DM may represent Seller or such Affiliate the Sellers’ Representative and/or Sellers in such dispute even though the interests of Seller or such Affiliate the Sellers’ Representative and/or Sellers may be directly adverse to Buyerthe Buyer Indemnified Parties, the Company and/or such Subsidiary and even though Sidley Austin LLP DM may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer; provided, on behalf 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 itself and its Affiliates (which, for this purpose, shall be deemed such member of the Buyer Indemnified Parties would require DM to include either refrain from representing the Company Sellers’ Representative and/or Sellers or obtain the informed consent of the Sellers’ Representative and/or Sellers and the Subsidiaries), also applicable member of the Buyer Indemnified Parties under applicable Laws or applicable ethical standards governing attorney conduct. Buyer further agrees that, as to all communications between or among Sidley Austin LLP and SellerDM, the Company, any Subsidiary the Sellers’ Representative and/or any of their respective Affiliates Seller that occur relate in any way to the transactions contemplated hereby or a similar transaction prior to the ClosingClosing (the “Protected Communications”), the attorney-client privilege and the expectation of client confidence belongs with respect to Seller the Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by Seller the Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Company (after Closing) or any Subsidiaryof 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, 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 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, if (x) in the event that a dispute arises between BuyerBuyer Indemnified Parties, on the Company or any Subsidiary one hand, and a third party other than Seller the Sellers’ Representative or an Affiliate of Seller after a Seller, on the Closingother hand, then the Company or any such Subsidiary (to the extent applicable) Buyer Indemnified Parties may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party of confidential communications by Sidley Austin LLPparty; provided provided, however, that if the Company or the Subsidiaries elect to Buyer Indemnified Parties may not waive such privilegeprivilege without the prior written consent of the Sellers’ Representative and (y) if Buyer is legally required by order of a Governmental Authority to access or obtain a copy of all or a portion of the Protected Communications, Buyer shall be entitled to access or obtain a copy of and disclose the Company or Protected Communications to the Subsidiaries, as applicable, shall provide Seller extent necessary to comply with reasonable advance notice of any such waiverorder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Treasure Finders, Inc.)
Conflicts and Privilege. BuyerIt is acknowledged by each of the parties hereto that the Sellers’ Representative has retained ▇▇▇▇▇ ▇▇▇▇▇▇ LLP (“DM”) to act as its counsel in connection with the transactions contemplated hereby. Buyer hereby agrees that in the event of a dispute under this Agreement, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company Ancillary Documents and the Subsidiaries) agrees that, notwithstanding any current documents and instruments contemplated hereby and thereby related to the transactions contemplated hereby 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 thereby 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 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 arises after the Closing between BuyerBuyer Indemnified Parties, on the Company or any Subsidiary one hand, and Seller or any of his Affiliatesthe Sellers’ Representative and Sellers, then Sidley Austin LLP on the other hand, DM may represent Seller or such Affiliate the Sellers’ Representative and/or Sellers in such dispute even though the interests of Seller or such Affiliate the Sellers’ Representative and/or Sellers may be directly adverse to Buyerthe Buyer Indemnified Parties, the Company and/or such Subsidiary and even though Sidley Austin LLP DM may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer; provided, on behalf 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 itself and its Affiliates (which, for this purpose, shall be deemed such member of the Buyer Indemnified Parties would require DM to include either refrain from representing the Company Sellers’ Representative and/or Sellers or obtain the informed consent of the Sellers’ Representative and/or Sellers and the Subsidiaries), also applicable member of the Buyer Indemnified Parties under applicable Laws or applicable ethical standards governing attorney conduct. Buyer further agrees that, as to all communications between or among Sidley Austin LLP and SellerDM, the Company, any Subsidiary the Sellers’ Representative and/or any of their respective Affiliates Seller that occur relate in any way to the transactions contemplated hereby or a similar transaction prior to the ClosingClosing (the “Protected Communications”), the attorney-client privilege and the expectation of client confidence belongs with respect to Seller the Protected Communications (the “Associated Rights”) belong to the Sellers’ Representative and Sellers and may be controlled by Seller the Sellers’ Representative and Sellers and shall not pass to or be claimed by Buyer, the Company (after Closing) or any Subsidiaryof 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, 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 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, if (x) in the event that a dispute arises between BuyerBuyer Indemnified Parties, on the Company or any Subsidiary one hand, and a third party other than Seller the Sellers’ Representative or an Affiliate of Seller after a Seller, on the Closingother hand, then the Company or any such Subsidiary (to the extent applicable) Buyer Indemnified Parties may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party of confidential communications by Sidley Austin LLPparty; provided provided, however, that if the Company or the Subsidiaries elect to Buyer Indemnified Parties may not waive such privilegeprivilege without the prior written consent of the Sellers’ Representative and (y) if Buyer is legally required by order of a Governmental Authority to access or obtain a copy of all or a portion of the Protected Communications, Buyer shall be entitled to access or obtain a copy of and disclose the Company or Protected Communications to the Subsidiaries, as applicable, shall provide Seller extent necessary to comply with reasonable advance notice of any such waiverorder.
Appears in 1 contract
Conflicts and Privilege. BuyerParent, on behalf of itself and its Affiliates (whichitself, for this purpose, shall be deemed to include the Surviving Company and the Subsidiaries) Operating Company and its respective Affiliates (together, a “Parent Party”), agrees that, notwithstanding any current or prior representation of the Company and the Subsidiaries by Sidley Austin LLP▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇”), Sidley Austin LLP ▇▇▇▇▇ shall be allowed to represent Seller the Stockholder Representative and any of his its Affiliates in any matters and disputes adverse to Buyer, the Company and/or any Subsidiary Parent Party that either are is existing on the date hereof or arise arises in the futurefuture and relates to this Agreement and the transactions contemplated hereby. BuyerParent, on behalf of itself and its Affiliates each Parent Party, hereby (which, for this purpose, shall be deemed to include the Company and the Subsidiariesa) hereby waives any claim that Buyer, the Company or any Subsidiary Parent Party has or may have that Sidley Austin LLP ▇▇▇▇▇ 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 Buyer, a Parent Party and the Company or any Subsidiary and Seller Stockholder Representative or any of his its Affiliates, then Sidley Austin LLP ▇▇▇▇▇ may represent Seller the Stockholder Representative or such Affiliate any of its Affiliates in such dispute dispute, even though the interests of Seller the Stockholder Representative or such Affiliate any of its Affiliates may be directly adverse to Buyer, the Company and/or such Subsidiary Parent Party and even though Sidley Austin LLP ▇▇▇▇▇ may have represented the Company or such Subsidiary in a matter substantially related to such dispute, or may be handling ongoing matters for the Parent Party. BuyerParent, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries)each Parent Party, also agrees that, as to all communications between or among Sidley Austin LLP ▇▇▇▇▇ and Sellera Company Holder, the Stockholder Representative, the Company, any Subsidiary and/or any of their its respective Affiliates that occur prior relate in any way to the Closingtransactions contemplated hereby, the attorney-client privilege and the expectation of client confidence belongs to Seller the Company Holders and the Stockholder Representative, may not be controlled by Seller any Parent Party and shall not pass to or be claimed by Buyer, the Company Parent Party or any Subsidiarythe Company. Notwithstanding the foregoing, if a dispute arises between Buyer, the Company or any Subsidiary a Parent Party and a third party other than Seller the Stockholder Representative or an Affiliate of Seller the Stockholder Representative after the Closing, then the Company or any such Subsidiary Parent Party (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP▇▇▇▇▇; provided provided, however, that if the Company or the Subsidiaries elect to Parent Party may not waive such privilege, privilege without the Company or prior written consent of the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverStockholder Representative.
Appears in 1 contract
Conflicts and Privilege. BuyerThe Buyer acknowledges and agrees that the Non-ESOP Sellers and the Seller Representative shall not be precluded from retaining the services of MFS and ESOP Counsel as its legal counsel, and the ESOP Trustee shall not be precluded from retaining the services of Polsinelli as its legal counsel, in the event of any dispute between the Buyer or the Company, on behalf of itself and its Affiliates (whichthe one hand, for this purpose, shall be deemed to include the Company and the Subsidiaries) agrees thatSellers, notwithstanding on the other hand, because such dispute concerns the Contemplated Transactions or whether otherwise involving the Company, notwithstanding, by itself, any current result of MFS’s or ESOP Counsel’s prior representation of the Company and or P▇▇▇▇▇▇▇▇▇’▇ prior representation of the Subsidiaries by Sidley Austin LLP, Sidley Austin LLP shall be allowed ESOP Trustee. Notwithstanding the sale of the Shares to represent Seller and any of his Affiliates in any matters and disputes adverse to the Buyer, the Company and/or any Subsidiary Buyer agrees that either are existing on neither 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 Buyer nor the Company shall have the right to assert (and the SubsidiariesBuyer shall cause the Company not to assert) hereby waives the attorney/client privilege as to any claim that Buyerattorney/client privileged pre-Closing communications between the Sellers, the ESOP Trustee, the Company or any Subsidiary has officer, director or may have that Sidley Austin LLP has a conflict employee of interest or is otherwise prohibited from engaging in such representation and agrees that, if a dispute arises after the Closing between Buyer, the Company (for the Company and its officers, directors and employees, only with respect to pre-Closing communications), on one hand, and MFS, ESOP Counsel or any Subsidiary and Polsinelli on the other hand, to the extent that the privileged communications directly relate to the Contemplated Transactions (“Privileged Communications”), provided, however, that no Seller or any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate in such dispute even though the interests of Seller or such Affiliate may be directly adverse to Buyer, the Company and/or such Subsidiary and even though Sidley Austin LLP may have represented the Company or such Subsidiary in a matter substantially related to such dispute. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications between or among Sidley Austin LLP and Seller, the Company, Representatives may waive any Subsidiary and/or any of their respective Affiliates that occur prior to the Closing, the such attorney-/client privilege and the expectation or exception of client confidence belongs to Seller and may be controlled by Seller and shall not pass to or be claimed by in connection with any matter involving a third party without the prior written consent of the Buyer, the Company or any Subsidiary. Notwithstanding the foregoing, if in the event that a dispute arises between BuyerBuyer or its Affiliates (including the Acquired Companies), on the Company or any Subsidiary one hand, and a third party other than Seller or an Affiliate of Seller after any Seller, on the Closingother hand, then Buyer and its Affiliates (including the Company or any such Subsidiary (to the extent applicableAcquired Companies) may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party and the Buyer and the Sellers will share such privilege with respect to such Privileged Communications solely in respect of confidential any such disputes, provided, however, that neither Buyer nor any of its Affiliates (including the Acquired Companies) may waive such privilege with respect to the Privileged Communications without the prior written consent of the Sellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. Except as set forth herein, the parties hereto agree that only the Sellers shall be entitled to assert such attorney/client privilege in connection with any dispute between the parties hereto in connection with such communications following the Closing and the files generated and maintained by Sidley Austin LLP; provided that if MFS, ESOP Counsel and Polsinelli as a result of MFS’s and ESOP Counsel’s representation of the Company or the Subsidiaries elect to waive such privilegeand, if applicable, the Company Non-ESOP Sellers, and as a result of P▇▇▇▇▇▇▇▇▇’▇ representation of the ESOP Trustee, in connection with the Contemplated Transaction or any efforts to sell the SubsidiariesShares to the Buyer or any other Person shall be and become the exclusive property of the Sellers, as applicable, shall provide Seller with reasonable advance notice of such waiver.. 96760364_21
Appears in 1 contract
Conflicts and Privilege. Buyer(a) The Parties, on behalf of itself their respective successors and its assigns (including, after the Amalgamation Effective Time, the Amalgamated Company), hereby agree that, in the event a dispute with respect to this Agreement, any other Transaction Document or the Transactions arises after the Amalgamation Effective Time between or among (x) the Sponsor, the shareholders or holders of other Equity Securities of Parent or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (whichother than the Amalgamated Company) (collectively, for this purposethe “Parent Group”), shall be deemed to include on the one hand, and (y) the Amalgamated Company and the Subsidiaries) agrees that, notwithstanding and/or any current or prior representation member of the Company and Group, on the Subsidiaries by Sidley Austin LLPother hand, Sidley Austin any legal counsel, including Shearman & Sterling LLP shall be allowed (“Shearman”), that represented Parent and/or the Sponsor prior to the Amalgamation Effective Time may represent Seller and any of his Affiliates in any matters and disputes adverse to Buyer, the Company Sponsor and/or any Subsidiary that either are existing on other member of 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 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 arises after the Closing between Buyer, the Company or any Subsidiary and Seller or any of his Affiliates, then Sidley Austin LLP may represent Seller or such Affiliate Parent Group in such dispute even though the interests of Seller or such Affiliate Persons may be directly adverse to Buyerthe Amalgamated Company, the Company and/or such Subsidiary and even though Sidley Austin LLP such counsel may have represented the Company or such Subsidiary Parent in a matter substantially related to such dispute, or may be handling ongoing matters for the Amalgamated Company and/or the Sponsor. BuyerThe Parties, on behalf of itself their respective successors and its Affiliates assigns (whichincluding, for this purposeafter the Amalgamation Effective Time, shall be deemed to include the Company and the SubsidiariesAmalgamated Company), also agrees 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 Sidley Austin LLP and SellerParent, the Company, any Subsidiary Sponsor and/or any other member of their respective Affiliates that occur prior to the ClosingParent Group, on the one hand, and Shearman, on the other hand, the attorney-/client privilege and the expectation of client confidence belongs shall survive the Amalgamation and belong to Seller and may be controlled by Seller the Parent Group after the Amalgamation Effective Time, and shall not pass to or be claimed or controlled by Buyer, the Company or any SubsidiaryAmalgamated Company. Notwithstanding the foregoing, if any privileged communications or information shared by the Group Companies prior to the Amalgamation Effective Time with Parent, Amalgamation Sub or the Sponsor under a common interest agreement shall remain the privileged communications or information of the applicable Group Company.
(b) The Parties, on behalf of their respective successors and assigns (including, after the Amalgamation Effective Time, the Amalgamated Company), hereby agree that, in the event a dispute arises between Buyerwith respect to this Agreement, the other Transaction Documents or the Transactions arises after the Amalgamation Effective Time between or among (x) the shareholders or holders of other Equity Securities of any of the Group Companies, the Sole Shareholder and/or any of their respective directors, members, partners, officers, employees or Affiliates (including the Amalgamated Company) (collectively, the “Company 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 Subsidiary 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 a third party ▇▇▇▇▇▇ ▇▇▇▇, on the other than Seller or an Affiliate hand, the attorney/client privilege and the expectation of Seller client confidence shall survive the Amalgamation and belong to the Company Group after the ClosingAmalgamation Effective Time, then and shall not pass to or be claimed or controlled by the Company Amalgamated Company. Notwithstanding the foregoing, any privileged communications or any such Subsidiary (information shared by Parent or Amalgamation Sub prior to the extent applicable) may assert Amalgamation Effective Time with the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLP; provided that if the Company Group Companies or the Subsidiaries elect Sole Shareholder under a common interest agreement shall belong to waive such privilege, the Company or the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverSponsor.
Appears in 1 contract
Sources: Business Combination Agreement (Worldwide Webb Acquisition Corp.)
Conflicts and Privilege. Buyer, on behalf of itself (a) SPAC and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries) agrees hereby agree 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 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 event a dispute with respect to this Agreement or the Transactions arises after the Closing between Buyeror among SPAC and/or Sponsor, on the Company or any Subsidiary one hand, and Seller the Company, PubCo, Merger Sub 1, Merger Sub 2, on the other hand, that Loeb & Loeb LLP (or any of his Affiliates, then Sidley Austin LLP its successors) that represented SPAC and/or Sponsor prior to the Closing (“Prior SPAC Counsel”) may represent Seller or such Affiliate Sponsor in such dispute even though the interests of Seller or such Affiliate Sponsor may be directly adverse to BuyerSPAC, the Company and/or such Subsidiary and even though Sidley Austin LLP such counsel may have represented the Company or such Subsidiary SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for SPAC and/or Sponsor. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also agrees that, as to all communications All communication between or among Sidley Austin LLP Prior SPAC Counsel, on the one hand, and SellerSPAC or Sponsor, on the Companyother hand, any Subsidiary and/or any of their respective Affiliates that occur prior to shall remain privileged after the Closing, Closing and the attorney-client privilege and the expectation of client confidence belongs relating thereto shall belong solely to Seller and may the Sponsor, shall be controlled by Seller the Sponsor and shall not pass to or be claimed by BuyerCompany, SPAC, PubCo or the Company or any SubsidiarySurviving Corporation following the Closing. Notwithstanding the foregoing, if 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 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 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 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 BuyerSPAC, PubCo or the Company or any Subsidiary Caravelle Companies, on the one hand, and a third party other than Seller or an Affiliate of Seller after Sponsor, on the Closingother hand, then the Company or any such Subsidiary (to the extent applicable) Sponsor may assert the attorney-client privilege to prevent the disclosure of the Privileged SPAC Deal Communications to such third party 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 confidential Surviving Corporation. In the event that SPAC, PubCo 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 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 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 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 Caravelle Companies after the Closing, (i) to the extent that SPAC or, after the Closing, PubCo or the 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 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 Sidley Austin LLP; provided seeking to have SPAC, PubCo or any Caravelle Company waive the attorney-client or other privilege, or by otherwise asserting that SPAC, PubCo or the 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 ▇▇▇ ▇▇ 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 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 Subsidiaries elect 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 such privilege, 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 the Subsidiaries, as applicable, shall provide Seller with reasonable advance notice of such waiverprotection 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. BuyerIt is acknowledged by each of the parties hereto that ACAS, on behalf of itself and its Affiliates (whichACEI, for this purposeACEII, shall be deemed to include the Company and the SubsidiariesRepresentative have retained ▇▇▇▇▇▇ ▇▇▇▇▇ LLP (“PB”) agrees that, notwithstanding and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (“AP”) to act as their counsel in connection with the transactions contemplated hereby and that neither PB nor AP has acted as counsel for any current or prior representation other party in connection with the transactions contemplated hereby and that none of the Company and other parties has the Subsidiaries by Sidley Austin LLP, Sidley Austin LLP shall be allowed to represent Seller and any status 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 a client of PB or arise in the future. Buyer, on behalf of itself and its Affiliates (which, AP 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 any other purposes as a result thereof. Parent hereby agrees that, if in the event that a dispute arises after the Closing between BuyerParent, the Company Company, ACAS, ACEI, ACEII or any Subsidiary and Seller the Representative, PB or any of his Affiliates, then Sidley Austin LLP AP may represent Seller ACAS, ACEI, ACEII or such Affiliate the Representative in such dispute even though the interests of Seller ACAS, ACEI, ACEII or such Affiliate the Representative may be directly adverse to BuyerParent, the other Stockholders, the Company and/or such Subsidiary or its Subsidiaries, provided, that PB or AP, as applicable, has not represented and even though Sidley Austin LLP may have represented is not then currently representing the Company or such Subsidiary its Subsidiaries in a matter substantially related to such dispute. Buyer, on behalf of itself and its Affiliates (which, for this purpose, shall be deemed to include the Company and the Subsidiaries), also Parent further agrees that, as to all communications between among PB or among Sidley Austin LLP AP and Seller, the Company, any Subsidiary of the Company, ACAS, ACEI, ACEII and/or any of their respective Affiliates the Representative that occur prior primarily relate to the Closingtransactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence belongs to Seller the Representative and may be controlled by Seller the Representative and shall not pass to or be claimed by BuyerParent, the Company or any Subsidiaryof its Subsidiaries. Notwithstanding the foregoing, if in the event that a dispute arises between BuyerParent, the Company or any Subsidiary of its Subsidiaries and a third party other than Seller or an Affiliate of Seller a party to this Agreement after the Closing, then the Company or any such Subsidiary (to the extent applicable) may assert the attorney-client privilege to prevent disclosure to such third party of confidential communications by Sidley Austin LLPPB or AP to such third party; provided provided, however, that if neither the Company or the Subsidiaries elect to nor such Subsidiary may waive such privilege, privilege without the Company prior written consent of PB or the SubsidiariesAP, as applicable, which consent shall provide Seller with reasonable advance notice not be unreasonably withheld, conditioned or delayed. Each of such waiverPB and AP is an intended third party beneficiary of this Section 9.4 and shall be entitled to rely on the provisions hereof.
Appears in 1 contract
Sources: Merger Agreement (Bankrate, Inc.)