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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or any of the transactions contemplated hereunder in whole or in part, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller or any of the Companies, on the one hand, and Parent or Purchaser, on the other hand, or, from and after the 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 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 and any other applicable legal privilege with respect to the engagement of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to any of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwise. [Remainder of page intentionally left blank]
Appears in 1 contract
Sources: Stock Purchase Agreement (Entercom Communications Corp)
Conflicts and Privilege. It is acknowledged by each of (a) The parties agree that, notwithstanding the parties hereto fact that Seller and the Companies have retained Wachtell, Lipton, 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 future, after the Closing, to represent Parent or its affiliates in connection with 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 Company Law Firm of Company, Parent or any of their respective affiliates. The parties acknowledge and agree that, for the purposes of the attorney-client privilege, Parent shall be deemed the client of the Company 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 Parent, shall be controlled by Parent and shall not pass to or be claimed by SPAC or Company or the 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, SPAC and their 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.
(b) The parties agree that, notwithstanding the fact that A▇▇▇▇ ▇▇▇▇▇ S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PLLC US LLP (togetherthe “SPAC Law Firm”) prior to the Closing, represented SPAC or Sponsor in connection with this Agreement, the “Existing Counsel”) 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 act as represent Sponsor, Energy Growth Holdings LLC 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. Each of Company and Parent, who is or has the right to be represented by independent counsel in connection with the transactions contemplated 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 respect to other matters occurring prior to SPAC Law Firm’s future representation of one or after the date more of the Original Agreement. To Sponsor, Energy Growth Holdings LLC or their respective affiliates in which the extent that any material subject interests of such person are adverse to the attorney-client privilege interests of SPAC and/or Company or any other applicable legal privilegeof their respective affiliates, 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 including any matters 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, arising arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by the SPAC Law Firm of the transactions contemplated hereunder in whole or in partSPAC, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller Sponsor or any of their respective affiliates. The parties acknowledge and agree that, for the Companies, on the one hand, and Parent or Purchaser, on the other hand, or, from and after the Closing, Parent, Purchaser or the Companies, on the one hand, and Seller, on the other hand, Seller (and not any purposes 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 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 Sponsor and Energy Growth Holdings LLC shall be deemed the clients of the SPAC 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 or Company or the Company Subsidiaries; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its affiliates (including, after the Closing, (i) Seller Company and its Affiliates (and not the Companiesrespective affiliates) shall of any applicable privileges or protections that can or may be the sole holders asserted to prevent disclosure of the attorney-client and any other applicable legal privilege with respect to the engagement of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to any of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwisethird party. [Remainder of page intentionally left blankSignature Page Follows.]
Appears in 1 contract
Sources: Business Combination Agreement (EGH Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each (a) Parent and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Company), 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 (i) the Sponsor, the holders of equity securities of Parent or the Sponsor, or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Parent Group”), on the one hand, and (ii) the Surviving Company or any member of the parties hereto that Seller and Company Group, on the Companies have retained Wachtellother hand, Liptonany legal counsel, including ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ and LLP (“▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC ”), that represented Parent or the Sponsor prior to the Closing may represent the Sponsor or any other member of the Parent 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 Parent in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Company or the Sponsor. Parent and the Company, on behalf of their respective successors and assigns (togetherincluding, after the Closing, the “Existing Counsel”) Surviving Company), further agree that, as to act as counsel all legally privileged communications prior to the Closing (made in connection with the transactions contemplated hereby negotiation, preparation, execution, delivery 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 performance under, or any other applicable legal privilege, as regards the Companies, has been shared between them, whether prior to dispute 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, Action arising out of or related to relating to, this Agreement Agreement, any Ancillary Agreements or any of the transactions contemplated hereunder in whole hereby or in partthereby) between or among Parent, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller Sponsor or any other member of the CompaniesParent Group, on the one hand, and Parent or Purchaser▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other handhand (the “▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Privileged Communications”), or, from the attorney-client privilege and the expectation of client confidence shall survive the Merger and belong to the Parent Group after the Closing, and shall not pass to or be claimed or controlled by the Surviving Company; provided, however, that any privileged communications or information shared by the Company prior to the Closing with Parent or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Surviving Company. Parent 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Privileged Communications, whether located in the records or email server of Parent, Purchaser the Surviving Company or their respective Subsidiaries, in any Action against or involving any of the CompaniesParent Group after the Closing, and Parent and the Company agree not to assert that any privilege has been waived as to the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Privileged Communications, by virtue of the Merger. Notwithstanding the foregoing, if a dispute arises after the Closing between or among the Surviving Company or any of its Subsidiaries or its or their respective directors, members, partners, officers, employees or Affiliates (other than the Parent Group), on the one hand, and Sellera third party other than (and unaffiliated with) the Parent Group, on the other hand, Seller (and not then the Surviving Company or any member of the Companies) will have Company Group may assert the sole and exclusive right to decide whether or not to waive any attorney-client or other applicable privilege that may apply to any communications between Seller or any prevent disclosure to such third party of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Privileged Communications.
(b) Parent and the Companies Company, on behalf of their respective successors and any Existing Counsel that occurred on or prior to the Closing. Except with respect to any existing or pending litigation or administrative proceedingsassigns (including, 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, the Surviving Company), 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 (i) Seller and its the holders of equity securities of the Company, or any of their respective directors, members, partners, officers, employees or Affiliates (other than the Surviving Company) (collectively, the “Company Group”), on the one hand, and not (ii) the CompaniesSurviving Company or any member of the Parent Group, on the other hand, any legal counsel, including ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇”), 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 Company, and even though such counsel may have represented Parent or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for 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 Ancillary Agreements or the transactions contemplated hereby or thereby) shall be between or among the sole holders Company or any member of the Company Group, on the one hand, and ▇▇▇▇▇▇, on the other hand (the “▇▇▇▇▇▇ Privileged Communications”), the attorney-client privilege and any other applicable legal privilege with respect the expectation of client confidence shall survive the Merger and belong to the engagement of Existing CounselCompany Group after the Closing, and none shall not pass to or be claimed or controlled by the Surviving Company; provided, however, that any privileged communications or information shared by Parent prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Companies shall be a holder thereofSurviving Company. Parent and the Company, (ii) to the extent together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal Person may use or disclose any such attorney-client communications or files to rely on any of the Companies by reason ▇▇▇▇▇▇ Privileged Communications, whether located in the records or email server of Parent, the Surviving Company or their respective Subsidiaries, in any attorney-client relationship between Existing Counsel and Action against or involving any of the Companies or otherwise. [Remainder Parties after the Closing, and Parent and the Company agree not to assert that any privilege has been waived as to the ▇▇▇▇▇▇ Privileged Communications, by virtue of page intentionally left blank]the Merger.
Appears in 1 contract
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) Parent The Parties acknowledge and Purchaser shall notagree, on behalf of their respective successors and from and after assigns, that, in the Closing 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 any event a dispute (whether in contract, tort or otherwise) based upon, arising out of or related with respect to this Agreement or the Merger arises after the Closing between or among (i) the former stockholders or holders of other equity interests of the Company and/or any of the transactions contemplated hereunder in whole foregoing Persons’ respective directors, members, partners, officers, employees or in partAffiliates (collectively, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller or any of the Companies“Company Stockholder Group”), on the one hand, and (ii) the Surviving Subsidiary, any of the Parent Parties or Purchaserany member of the Parent Stockholder Group, on the other hand, orany legal counsel, from and after including K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP (“K▇▇▇▇▇▇▇”), that represented the Closing, Parent, Purchaser Company or the CompaniesCompany Stockholder Group prior to the Closing may represent any member of the Company Stockholder Group in such dispute even though the interests of such Persons may be directly adverse to the 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 Parent or the Surviving Subsidiary. The Parties, 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 proceeding based upon, arising out of, or relating to, this Agreement, any other Ancillary Agreement or the Merger) between the Company or among any member of the Company Stockholder Group, on the one hand, and SellerK▇▇▇▇▇▇▇, on the other hand (the “K▇▇▇▇▇▇▇ Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the transactions contemplated hereby and belong to the Company Stockholder Group after the Closing, and shall not pass to or be claimed or controlled by Parent. Notwithstanding the foregoing, any privileged communications or information shared by Parent prior to the Closing with another the Company under a common interest agreement shall remain the privileged communications or information of Parent. Parent, together with any of its Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the K▇▇▇▇▇▇▇ Privileged Communications, whether located in the records or email server of a Parent, the Company or their respective Subsidiaries, in any proceeding against or involving any of the Parties after the Closing, and P▇▇▇▇▇ agrees not to assert that any privilege has been waived as to the K▇▇▇▇▇▇▇ Privileged Communications, by virtue of the transactions contemplated by this Agreement.
(b) The Parties acknowledge and agree, on behalf of their respective successors and assigns, that in the event a dispute with respect to this Agreement or the Merger arises after the Closing between or among (i) the former stockholders or holders of other equity interests of Parent and/or any of the foregoing Persons’ respective directors, members, partners, officers, employees or Affiliates (collectively, the “Parent Stockholder Group”), on the one hand, and (ii) the Surviving Subsidiary or any of the Parent Parties, on the other hand, Seller any legal counsel, including G▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇, LLP (and not any of “GT”), that represented Parent or 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 apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or Parent Stockholders prior to the ClosingClosing may represent any member of the Parent Stockholder Group in such dispute even though the interests of such Persons may be directly adverse to Parent, and even though such counsel may have represented Parent in a matter substantially related to such dispute. Except Parent, on behalf of its successors and assigns, further agrees that, as to all legally privileged communications prior to the Closing (made in connection with respect to any existing or pending litigation or administrative proceedingsthe negotiation, preparation, execution, delivery and performance under, or any internal investigations dispute or proceeding based upon, arising out of, or relating to circumstances that could result in either to, this Agreement, any other Ancillary Agreement or the Merger) between any member of the foregoingParent Stockholder Group, for which on the parties one hand, and GT, on the other hand (the “GT Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall cooperate in good faith survive the transactions contemplated hereby and belong to share attorney-client privilege, upon and the Parent Stockholder Group after the Closing, (i) Seller and its Affiliates (and shall not pass to or be claimed or controlled by Parent. Notwithstanding the Companies) foregoing, any privileged communications or information shared by the Company prior to the Closing with Parent under a common interest agreement shall be remain the sole holders privileged communications or information of the attorney-client and Company. The Company, together with any other applicable legal privilege with respect to the engagement of Existing Counselits Affiliates, and none of the Companies shall be a holder thereofSubsidiaries, (ii) to the extent successors or assigns, agree that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal Person may use or disclose any such attorney-client communications or files to rely on any of the Companies by reason GT Privileged Communications, whether located in the records or email server of Parent, the Company or their respective Subsidiaries, in any attorney-client relationship between Existing Counsel and proceeding against or involving any of the Companies or otherwise. [Remainder Parties after the Closing, and the Company agrees not to assert that any privilege has been waived as to the GT Privileged Communications, by virtue of page intentionally left blank]the transactions contemplated by this Agreement.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each (a) Svac and the Company, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement, the Transactions or the Debt Financing arises after the Closing between or among (x) the Sponsor, the shareholders or holders of other equity interests of Svac or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Svac Group”), on the one hand, and (y) Company and/or any member of the parties hereto DNEG Group (as defined below), on the other hand, any legal counsel, including Arent Fox LLP (“Arent Fox”), that Seller represented Svac and/or the Sponsor prior to the Closing may represent the Sponsor and/or any other member of the Svac Group in such dispute even though the interests of such Persons may be directly adverse to Svac, and even though such counsel may have represented Svac in a matter substantially related to such dispute, or may be engaged in ongoing matters for the Sponsor. Svac and the Companies have retained WachtellCompany, Liptonon 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 Action arising out of or relating to, this Agreement, any Ancillary Agreements, the Transactions or the Debt Financing) between or among Svac, the Sponsor and/or any other member of Svac Group, on the one hand, and Arent Fox, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Company Exchange and belong to the Svac Group after the Closing, and shall not pass to or be claimed or controlled by Svac. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Svac or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Company and shall not be used by the Svac Group against the DNEG Group, as subsequently defined, in connection with any dispute among the parties.
(b) Svac and the Company, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement, the Transactions or the Debt Financing arises after the Closing between or among (x) the shareholders or holders of other equity interests of the Company and/or any of its directors, members, partners, officers, employees or Affiliates (collectively, the “DNEG Group”), on the one hand, and (y) any member of the Svac Group, on the other hand, any legal counsel, including ▇▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC LLP (together, the “Existing CounselLatham”) that represented the Company prior to act the Closing may represent any member of the DNEG Group in such dispute even though the interests of such Persons may be directly adverse to the Svac Group, and even though such counsel may have represented Svac and/or the Company in a matter substantially related to such dispute, or may be engaged in ongoing matters for Svac, and further agree that, as counsel to all legally privileged communications prior to the Closing (made in connection with the transactions contemplated hereby negotiation, preparation, execution, delivery 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 performance under, or any other applicable legal privilege, as regards the Companies, has been shared between them, whether prior to dispute 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, Action arising out of or related to relating to, this Agreement Agreement, any Ancillary Agreements, the Transactions or the Debt Financing) between or among the Company and/or any member of the transactions contemplated hereunder in whole or in part, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller or any of the CompaniesDNEG Group, on the one hand, and Parent or PurchaserLatham, on the other hand, or, from the attorney/client privilege and the expectation of client confidence shall survive the Company Exchange and belong to the DNEG Group after the Closing, Parentand shall not pass to or be claimed or controlled by Svac. Notwithstanding the foregoing, Purchaser any privileged communications or the Companies, on the one hand, and Seller, on the other hand, Seller (and not information shared by any member 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 apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or Svac Group prior to the Closing. Except Closing with respect to any existing the Company under a common interest agreement shall remain the privileged communications or pending litigation or administrative proceedings, or any internal investigations relating to circumstances that could result in either information of the foregoing, for which Svac Group and shall not be used by the parties shall cooperate DNEG Group against the Svac Group in good faith to share attorney-client privilege, upon and after connection with any dispute among the Closing, (i) Seller and its Affiliates (and not the Companies) shall be the sole holders of the attorney-client and any other applicable legal privilege with respect to the engagement of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to any of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwise. [Remainder of page intentionally left blank]parties.
Appears in 1 contract
Sources: Business Combination Agreement (Sports Ventures Acquisition Corp.)
Conflicts and Privilege. It is acknowledged by each of the parties hereto Recognizing that Seller and the Companies have retained Wachtell, Lipton, ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇ LLP (“▇▇▇▇ ▇▇▇▇▇▇ PLLC (together, the “Existing Counsel”) has acted as legal counsel to act as counsel in connection with Seller and its Affiliates (including 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 Acquired 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or any of the transactions contemplated hereunder in whole or in part, and (b) in connection with any dispute that may arise, prior to the Closing, between and that ▇▇▇▇ ▇▇▇▇▇ intends to act as legal counsel to Seller or any of and its Affiliates (which will no longer include the Acquired Companies, on the one hand, and Parent or Purchaser, on the other hand, or, from and ) after the Closing, Parenteach of Buyer and the Acquired Companies hereby waives, Purchaser 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 CompaniesTransactions. In addition, on the one hand, and all communications involving attorney-client confidences between Seller, on its Affiliates or any Acquired Company and ▇▇▇▇ ▇▇▇▇▇ in the other handcourse of the negotiation, documentation and consummation of the Transactions (the “Privileged Communications”) shall be deemed to be attorney-client confidences that belong solely to Seller and its Affiliates (and not the Acquired Companies). Accordingly, the Acquired Companies shall not, without Seller’s consent, have access to any Privileged Communications, or to the files of the Companies) will have the sole and exclusive right ▇▇▇▇ ▇▇▇▇▇ relating to decide its engagement, whether or not to waive any attorney-client or other applicable privilege that may apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or prior to Closing shall have occurred. Without limiting 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 generality 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 and any other applicable legal privilege with respect to the engagement of Existing CounselPrivileged Communications and the related engagement, and none of the Acquired Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel ▇▇▇▇ ▇▇▇▇▇ in respect of such engagement constitute property of the client, only Seller and its Affiliates (and not the Acquired Companies) shall hold such property rights, rights and (iii) Existing Counsel ▇▇▇▇ ▇▇▇▇▇ shall have no duty whatsoever to reveal or disclose any such attorney-client communications Privileged Communications or files to any of the Acquired Companies by reason of any attorney-client relationship between Existing Counsel ▇▇▇▇ ▇▇▇▇▇ and any of the Acquired Companies or otherwise. [Remainder Notwithstanding the foregoing, in the event that a dispute arises between Buyer and any of page intentionally left blank]the Acquired Companies, on the one hand, and a Person other than a party to this Agreement, on the other hand, after the 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 disclosure to such Third Party of the Privileged Communications; provided, however, that the Acquired Companies may not waive such privilege without the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed). In the event that Buyer or any of the Acquired Companies are legally required or requested by 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 Communications, Buyer shall 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 notify Seller in writing (prior to the disclosure by Buyer of any Privileged Communications to the extent practicable) so that Seller may attempt to seek a protective order, and ▇▇▇▇▇ 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 (including all definitions of defined terms used in this Section 12.22) and may specifically enforce its terms.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Apogee Enterprises, Inc.)
Conflicts and Privilege. It is acknowledged by each Each of the parties hereto to this Agreement hereby agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees and Affiliates, that Seller and the Companies have retained Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PLLC US LLP (together, the “Existing CounselNRF”) to act may serve 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or any of the transactions contemplated hereunder in whole or in part, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller or any of the Companies, on the one hand, and Parent or Purchaser, the Company on the other hand, orin connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and that, following consummation of the transactions contemplated hereby, NRF may serve as counsel to Seller or any director, member, partner, officer, employee or Affiliate of Seller in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement or any other matter notwithstanding such representation (or continued representation) of the Company and each of the parties hereto hereby consents thereto and waives any conflict of interest arising therefrom, and each of such parties shall cause any Affiliate thereof to consent to waive any conflict of interest arising from such representation. ▇▇▇▇▇ further agrees that, as to all communications among NRF, the Company and Seller 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 and may be controlled by Seller and shall not pass to or be claimed by Buyer or the Company. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Company and a third party other than a party to this Agreement after the 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 Company may 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 assert the attorney-client and any other applicable legal privilege with respect to prevent disclosure of confidential communications by NRF to such third party; provided that the engagement Company may not waive such privilege without the prior written consent of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to any of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwise. [Remainder of page intentionally left blank]Seller.
Appears in 1 contract
Sources: Equity Purchase Agreement (Inpixon)
Conflicts and Privilege. It is acknowledged by each (a) Parent and CAG, 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 the shareholders or holders of other equity interests of Parent and/or any of their respective directors, members, partners, officers, employees, or Affiliates (other than Parent) (collectively, the “Parent Group”), on the one hand, and Parent and/or any member of the parties hereto that Seller and Company Conflict Group, on the Companies have retained Wachtellother hand, Lipton, any legal counsel (including G▇▇▇▇▇▇▇ & M▇▇▇▇▇) that represented Parent prior to the Closing may represent any other member of the Parent Group in such dispute, even though the interests of such Persons may be directly adverse to Parent, and even though such counsel may have represented Parent in a matter substantially related to such dispute, or may be handling ongoing matters for Parent and/or any other member of the Company Conflict Group. Parent and CAG further agree that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including G▇▇▇▇▇▇▇ M▇▇▇▇▇) that represented Parent and/or any other member of the Parent 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 belongs to the Parent Group and shall be controlled by the Parent Group, and shall not pass to or be claimed or controlled by Parent or CAG. Notwithstanding the foregoing, any privileged communications or information shared by CAG prior to the Closing with Parent and/or any other member of the Parent Group (in any capacity) under a common interest agreement shall remain the privileged communications or information of Parent.
(b) CAG and Parent, on behalf of their 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 the stockholders or holders of other equity interests of CAG and/or any of their respective directors, members, partners, officers, employees, or Affiliates (other than Parent) (collectively, the “Company Conflict Group”), on the one hand, and the Companies and/or any member of the Parent Group, on the other hand, any legal counsel (including Pillsbury W▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ PLLC (together, the “Existing Counsel”LLP) 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) Parent and Purchaser shall not, and from and after the Closing shall cause the Companies to not, seek to have any Existing Counsel disqualified from representing Seller or (represented CAG prior to the Closing onlymay represent Parent and any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to the Companies, and even though such counsel may have represented CAG in a matter substantially related to such dispute, or may be handling ongoing matters for the Companies. Parent and CAG further agree that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including Pillsbury W▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP) that represented the Companies prior to the Closing and any one or more such Persons that relate in any dispute (whether in contract, tort or otherwise) based upon, arising out of or related way to this Agreement or any of the transactions contemplated hereunder in whole or in parthereby, the attorney/client privilege and the expectation of client confidence belongs to the Company Group and shall be controlled by CAG, and shall not pass to or be claimed or controlled by Parent (bafter giving effect to the Closing) in connection with or the Companies. Notwithstanding the foregoing, any dispute that may arise, privileged communications or information shared by Parent prior to the Closing, between Seller or Closing with any member of the Companies, on Company Group under a common interest agreement shall remain the one hand, and Parent or Purchaser, on the other hand, or, from and after the 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 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 and any other applicable legal privilege with respect to the engagement of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client privileged communications or files to any information of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwise. [Remainder of page intentionally left blank]Parent.
Appears in 1 contract
Conflicts and Privilege. It is acknowledged by each (a) The Parties, on behalf of their respective successors and assigns, hereby agree that, in the parties hereto that Seller and the Companies have retained Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC (togetherevent a dispute with respect to this Agreement, the “Existing Counsel”) to act as counsel in connection with Ancillary Agreements or 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) Parent and Purchaser shall not, and from and thereby arises after the Closing shall cause the Companies to not, seek to have any Existing Counsel disqualified from representing Seller between or among (prior to the Closing onlyx) the Companies in any dispute (whether in contract, tort stockholders or otherwise) based upon, arising out holders of other equity interests of the FGH or related to this Agreement or the Company and any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the transactions contemplated hereunder in whole or in part, and (b) in connection with any dispute that may arise, prior to the Closing, between Seller or any of the Companies“Forbes Group”), on the one hand, and Parent (y) Purchaser, the Sponsor, the shareholders or Purchaserholders of other equity interests of Purchaser or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Purchaser Group”), on the other hand, orany legal counsel, from including Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP (“Cadwalader”), that represented the Company prior to the Closing may represent any member of the Forbes Group in such dispute even though the interests of such Persons may be directly adverse to Purchaser, and after even though such counsel may have represented the ClosingCompany in a matter substantially related to such dispute, Parentor may be handling ongoing matters for the Company, Purchaser and 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 Ancillary Agreements or the Companiestransactions contemplated hereby or thereby) between or among the Company and/or any member of the Forbes Group, on the one hand, and SellerCadwalader, on the other hand (the “Cadwalader Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Forbes Group after the Closing, and shall not pass to or be claimed or controlled by the Company. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with Purchaser under a common interest agreement shall remain the privileged communications or information of the Company. The Parties, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Cadwalader Privileged Communications, whether located in the records or email server of the Purchaser, the Company or their respective Subsidiaries, in any Action against or involving any of the parties after the Closing, and the Parties agree not to assert that any privilege has been waived as to the Cadwalader Privileged Communications, by virtue of the Transactions.
(b) The Parties, on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby arises after the Closing between or among (x) any member of the Forbes Group, on the one hand, and (y) any member of the Purchaser Group, on the other hand, Seller any legal counsel, including K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP (“K&E”), that represented Purchaser 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 apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or Sponsor prior to the Closing. Except Closing may represent any member of the Purchaser Group in such dispute even though the interests of such Persons may be directly adverse to the Company, and even though such counsel may have represented Purchaser in a matter substantially related to such dispute, or may be handling ongoing matters for Purchaser, and further agree that, as to all legally privileged communications prior to the Closing (made in connection with respect to any existing or pending litigation or administrative proceedingsthe negotiation, preparation, execution, delivery and performance under, or any internal investigations dispute or Action arising out of or relating to circumstances that could result in either to, this Agreement, any Ancillary Agreements or the transactions contemplated hereby or thereby) between or among Purchaser and/or any member of the foregoingPurchaser Group, for which on the parties one hand, and K&E, on the other hand (the “K&E Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall cooperate in good faith survive the Transactions and belong to share attorney-client privilege, upon and the Purchaser Group after the Closing, (i) Seller and its Affiliates (and shall not pass to or be claimed or controlled by the Companies) shall be Company. Notwithstanding the sole holders of the attorney-client and foregoing, any other applicable legal privilege with respect privileged communications or information shared by Purchaser prior to the engagement of Existing Counsel, and none of Closing with the Companies Company under a common interest agreement shall be a holder thereof, (ii) to remain the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client privileged communications or files to information of Purchaser. The Parties, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Companies by reason K&E Privileged Communications, whether located in the records or email server of the Purchaser, the Company or their respective Subsidiaries, in any attorney-client relationship between Existing Counsel and Action against or involving any of the Companies or otherwise. [Remainder parties after the Closing, and the Parties agree not to assert that any privilege has been waived as to the K&E Privileged Communications, by virtue of page intentionally left blank]the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (Magnum Opus Acquisition LTD)
Conflicts and Privilege. It is acknowledged by (a) Each Party acknowledges and agrees that each of the parties hereto that Seller and the Companies have retained Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ Milbank and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC (together, the “Existing Counsel”) to act has acted as counsel for Seller, and may have acted as counsel for its Affiliates (including the Company and its Subsidiaries), 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or any of and the transactions contemplated hereunder in whole or in part, and Contemplated Transactions (the “Acquisition Engagement”).
(b) in connection with any dispute Each Party acknowledges and agrees that may arise, prior to the Closing, all confidential communications between Seller or any of and its Affiliates (including the CompaniesCompany and its Subsidiaries), on the one hand, and Parent Milbank or Purchaser▇▇▇▇▇▇▇▇▇, on the other hand, or, from and after in the Closing, Parent, Purchaser or course of the Companies, on the one handAcquisition Engagement, 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 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 attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, shall be deemed to 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 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) Seller and its Affiliates (and not the Companies) shall be the sole holders of the attorney-client and any other applicable legal privilege with respect to the engagement of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel 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 not the Companiesits Subsidiaries) shall hold such property rights, ; and (iiiii) Existing Counsel 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 Companies Closing, the Company and its Subsidiaries) by reason of any attorney-client relationship between Existing Counsel Milbank or ▇▇▇▇▇▇▇▇▇, on the one hand, and the Company or any of its Subsidiaries, on the Companies other hand, or otherwise. [Remainder If and to the extent that, at any time subsequent to the Closing, Buyer or any of page intentionally left blank]its Affiliates (including, following the Closing, the Company or any of its Subsidiaries) 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, the Company and its Subsidiaries), on the one hand, and Milbank or ▇▇▇▇▇▇▇▇▇ (as the case may be), on the other hand, that occurred at any time prior to the Closing, Buyer, on behalf of itself and its Affiliates (including, following the Closing, the Company and its Subsidiaries), shall be entitled to waive such privilege only with the prior written consent of Seller. Notwithstanding the foregoing, in the event that a dispute arises between Buyer or any of its Affiliates (including, following the Closing, the Company and its Subsidiaries), on the one hand, and a Third Party (other than, for the avoidance of doubt, Seller or any of its Affiliates), after the Closing, Buyer or any of its Affiliates (including, following the Closing, the Company and its Subsidiaries) may assert the attorney-client privilege to prevent disclosure of attorney-client communications or files to such Third Party.
(c) Each Party acknowledges and agrees that Milbank and ▇▇▇▇▇▇▇▇▇ may continue to represent Seller and its Affiliates (other than, following the 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 any of its Affiliates (including, following the Closing, the Company and its Subsidiaries), on the one hand, and Seller and its Affiliates (other than, following the Closing, the Company and its Subsidiaries), on the other hand, are adverse, including any matter relating to the Contemplated Transactions, and whether or not such matter is one in which Milbank or ▇▇▇▇▇▇▇▇▇, as 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 than, following the Closing, the Company and its Subsidiaries) of any information learned by Milbank or ▇▇▇▇▇▇▇▇▇, as the case may be, in the course of its representation of Seller and its Affiliates (including the Company and its Subsidiaries), whether or not such information is subject to attorney-client privilege, attorney work product protection, or Milbank’s or ▇▇▇▇▇▇▇▇▇’▇ duty of confidentiality.
(d) Buyer and its Affiliates (including, following the Closing, the Company and its Subsidiaries) shall not have any attorney-client relationship with Milbank or ▇▇▇▇▇▇▇▇▇ from 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. It is acknowledged by (a) Parent, SpinCo and the Company, on behalf of their respective successors and assigns (in the case of Parent, including, after the Closing, each of the parties hereto that Seller and SpinCo Entities), hereby agree that, in the Companies have retained Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC (together, the “Existing Counsel”) to act as counsel in connection with the transactions contemplated hereby and event a dispute 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) Parent and Purchaser shall not, and from and after the Closing 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 any dispute (whether in contract, tort or otherwise) based upon, arising out of or related to this Agreement or the Transactions arises after the Closing between or among the Sponsor, Parent, the shareholders or holders of other equity interests of Parent or the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates of any of the transactions contemplated hereunder in whole or in part, and foregoing (b) in connection with any dispute that may arise, prior to the Closing, between Seller or including any of the CompaniesSpinCo Entities) (collectively, the “Parent Group”), on the one hand, and Parent the Company or Purchaserany other member of the Company Group (as defined below), on the other hand, orany legal counsel (including Weil) that represented Parent or the Sponsor prior to the Closing may represent the Sponsor or any other member of the Parent Group in such dispute, from regardless of whether the interests of any such Persons may be directly adverse to Parent or the applicable member of the Parent Group, and after even though such counsel may have represented Parent or another member of the Parent Group in a matter substantially related to such dispute, or may be handling ongoing matters for Parent, the Sponsor or any other member of the Parent Group. Parent, SpinCo and the Company further agree that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including Weil) that represented Parent, the Sponsor or any other member of the Parent Group prior to the Closing, Parent, Purchaser or the Companies, on the one hand, and Sellerany one or more of such Persons, on the other hand, Seller that relate in any way to this Agreement or the Transactions, the attorney/client privilege and the expectation of client confidence belongs to the Parent Group, shall be controlled by the Parent Group, and shall not pass to or be claimed or controlled by the Company or any of its Subsidiaries (after giving effect to the Closing). Notwithstanding the foregoing, any privileged communications or information shared prior to the Closing by the Company or any of its Subsidiaries (other than the SpinCo Entities), on the one hand, with Parent, the Sponsor or any other member of the Parent Group (other than the SpinCo Entities) (in any capacity), on the other hand, under a common interest agreement shall remain the privileged communications or information of the Company Group.
(b) Parent, SpinCo and not the Company, on behalf of their respective successors and assigns (in the case of Parent, including, after the Closing, each of the SpinCo 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 Company, any Subsidiary of the Company (other than any of the CompaniesSpinCo Entities), the shareholders or holders of other equity interests of the Company, any Subsidiary of the Company (other than any of the SpinCo Entities) will have the sole and exclusive right to decide whether or not to waive any attorney-client or other applicable privilege that may apply to any communications between Seller or any of their respective directors, members, partners, officers, employees or Affiliates of any of the Companies foregoing (collectively, the “Company Group”), on the one hand, and the Surviving Corporation or any Existing Counsel other member of the Parent Group, on the other hand, any legal counsel (including LW) that occurred on represented the Company or any other member of the Company Group prior to the Closing may represent any member of the Company Group in such dispute, regardless of whether the interests of any such Persons may be directly adverse to the Surviving Corporation or any other member of the Parent Group, and even though such counsel may have represented Parent or any other member of the Parent Group in a matter substantially related to such dispute, or may be handling ongoing matters for the Surviving Corporation or any other member of the Parent Group. Parent, SpinCo and the Company further agree that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including LW) that represented the Company or any other member of the Company Group prior to the Closing. Except with respect , on the one hand, and any one or more of such Persons, on the other hand, that relate in any way to any existing this Agreement or pending litigation the Transactions, the attorney/client privilege and the expectation of client confidence belongs to the Company Group, shall be controlled by the Company Group, and shall not pass to or administrative proceedings, be claimed or controlled by Parent or any internal investigations relating to circumstances that could result in either other member of the Parent Group. Notwithstanding the foregoing, for which any privileged communications or information shared prior to the parties Closing by Parent or any other member of the Parent Group, on the one hand, with any member of the Company Group, on the other hand, under a common interest agreement shall cooperate in good faith to share attorney-client privilegeremain the privileged communications or information of the SpinCo Entities and, upon and after following the Closing, (i) Seller and its Affiliates (and not the Companies) shall be the sole holders of the attorney-client and any other applicable legal privilege with respect to the engagement of Existing Counsel, and none of the Companies shall be a holder thereof, (ii) to the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to any of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwise. [Remainder of page intentionally left blank]Parent Group.
Appears in 1 contract
Sources: Merger Agreement (Avista Public Acquisition Corp. II)
Conflicts and Privilege. It is acknowledged by each (i) The Parent and the Company, on behalf of their respective successors and assigns, agree that, if a dispute with respect to this Agreement or the Transactions arises after the Closing between or among: (x) the Sponsor, the stockholders, shareholders or holders of other Equity Securities of the parties hereto that Seller and Parent or the Companies have retained WachtellSponsor or any of their respective directors, Liptonmembers, ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC partners, officers, employees or Affiliates (togethercollectively, the “Existing CounselLCW Group”), on the one hand; and (y) to act as counsel in connection with the transactions contemplated hereby and with respect to other matters occurring prior to Parent following the Closing or after the date any member of the Original Agreement. To Company Group, on the extent other hand, any legal counsel, including SA, that any material subject to represented the attorney-client privilege Parent 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) Parent and Purchaser shall not, and from and after the Closing shall cause the Companies to not, seek to have any Existing Counsel disqualified from representing Seller or (Sponsor prior to the Closing onlymay represent the Sponsor or any other member of the LCW Group, in such dispute even though: (A) the Companies interests of such Persons may be directly adverse to the Parent and its Affiliates (following the Closing); and (B) such counsel may have represented the Parent in any dispute (whether in contract, tort or otherwise) based upon, arising out of or a matter substantially related to this Agreement such dispute or any may be handling ongoing matters for the Parent or the Sponsor. The Parent and the Company, on behalf of the transactions contemplated hereunder in whole or in parttheir respective successors and assigns, and (b) in connection with any dispute that may arisefurther agree that, as to all Legally Privileged Communications prior to the ClosingClosing between or among the Parent, between Seller the Sponsor or any other member of the CompaniesLCW Group, on the one hand, and Parent or PurchaserSA, on the other hand, or, from the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the LCW Group after the Closing. The attorney/client privilege and the expectation of client confidence with respect to the foregoing shall not pass to or be claimed or controlled by the Parent and its Affiliates (following the Closing). Notwithstanding the foregoing, Parent, Purchaser any privileged communications or information shared by the Company prior to the Closing with the Parent or the CompaniesSponsor under a common interest agreement shall remain the privileged communications or information of the Parent.
(ii) The Parent and the Company, on behalf of their respective successors and assigns agree that, if a dispute with respect to this Agreement or the Transactions arises after the Closing between or among: (x) the stockholders, shareholders or holders of other Equity Securities of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company Group”), on the one hand; and (y) the Company (following the Closing) or any member of the LCW Group, on the other hand, any legal counsel, including V▇▇▇▇▇ Price P.C. (“VP”) that represented the Company prior to the Closing may represent any member of the Company Group in such dispute even though: (A) the interests of such Persons may be directly adverse to the Company (following the Closing); and (B) such counsel may have represented the Parent or the Company in a matter substantially related to such dispute or may be handling ongoing matters for the Parent or the Company (following the Closing). The Parent and the Company, on behalf of their respective successors and assigns, further agree that, as to all Legally Privileged Communications prior to the Closing between or among the Company or any member of the Company Group, on the one hand, and SellerVP, on the other hand, Seller (the attorney/client privilege and not any the expectation of client confidence shall survive the Companies) will have Transactions and belong to the sole and exclusive right to decide whether or not to waive any attorney-client or other applicable privilege that may apply to any communications between Seller or any of the Companies and any Existing Counsel that occurred on or prior to Company Group after 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 The attorney/client privilege and the expectation 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 and any other applicable legal privilege confidence with respect to the engagement of Existing Counselforegoing shall not pass to or be claimed or controlled by the Company (following the Closing). Notwithstanding the foregoing, and none any privileged communications or information shared by the Parent prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Companies shall be a holder thereof, Company (ii) to following the extent that files of Existing Counsel constitute property of the client, only Seller and its Affiliates (and not the Companies) shall hold such property rights, and (iii) Existing Counsel shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to any of the Companies by reason of any attorney-client relationship between Existing Counsel and any of the Companies or otherwise. [Remainder of page intentionally left blank]Closing).
Appears in 1 contract
Sources: Business Combination Agreement (Learn CW Investment Corp)