Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie LLP and ▇▇▇▇▇▇ LLP (each referred to herein as “Prior Company Counsel”) have each acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP (“Prior 7GC Counsel”) has acted as counsel to 7GC in various matters involving a range of issues and as counsel to 7GC in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby. (b) In connection with any matter or dispute under this Agreement, 7GC hereby irrevocably waives and agrees not to assert, and agree to cause the Surviving Corporation or the Surviving Entity to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company, (ii) Prior Company Counsel’s representation of any of the Group Companies (collectively the Persons referenced in clauses (i) and (ii), the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC Counsel’s prior representation of 7GC and (iv) Prior 7GC Counsel’s representation of the Sponsor, any Subsidiary of 7GC and/or any 7GC stockholders (collectively the Persons referenced in clauses (iii) and (iv), the “7GC Advised Parties”) prior to and after the Closing. (c) 7GC further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving Entity, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Company Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement 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 the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, or the Surviving Entity. 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 the Company, shall be controlled by the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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. (d) The Company and each of the Pre-Closing Holders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving Entity, that all communications in any form or format whatsoever between or among any of Prior 7GC Counsel, 7GC, any of the 7GC Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity. All 7GC Deal Communications that are attorney-client privileged (the “Privileged 7GC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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. (e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, the Surviving Corporation or the Surviving Entity, on the one hand, and a third party other than the Sponsor on the other hand, 7GC, the Surviving Corporation or the Surviving Entity may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC Deal Communications to such third party; provided, however, that neither 7GC nor the Surviving Corporation nor the Surviving Entity may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company or (ii) Privileged 7GC Deal Communications without the prior written consent of the Sponsor. In the event that 7GC, the Surviving Corporation or the Surviving Entity is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Company in writing (including by making specific reference to this Section 8.19) so that the Company can seek a protective order and (ii) the Privileged 7GC Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19) so that the Sponsor can seek a protective order and, in either case, 7GC agrees to use all commercially reasonable efforts to assist therewith. (f) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only 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 Surviving Corporation or the Surviving Entity, 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. To the extent that files or other materials maintained by Prior 7GC Counsel constitute property of its clients, only the Sponsor and the 7GC Advised Parties shall hold such property rights and Prior 7GC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC Deal Communications by reason of any attorney-client relationship between Prior 7GC Counsel, on the one hand, and 7GC, 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. (g) 7GC agrees on behalf of itself and the Surviving Corporation or the Surviving Entity, (i) to the extent that 7GC, the Surviving Corporation or the Surviving Entity receives or takes physical possession of any Company Deal Communications or 7GC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC Advised Parties or any other Person, of the privileges or protections described in this Section 8.19, and (b) neither 7GC nor the Surviving Corporation or the Surviving Entity shall assert any claim that any of the Company Advised Parties, 7GC 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 or 7GC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company or the Sponsor, as applicable, waive the attorney-client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, or the Surviving Entity has the right to waive the attorney-client or other privilege, (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party and (iv) not to seek to obtain the 7GC Deal Communications from Prior 7GC Counsel so long as such 7GC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie LLP and ▇▇▇▇▇▇ Sidley Austin LLP (each referred to herein as “Prior Company Counsel”) have each has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby and (ii) ▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇▇ LLP (“Prior 7GC PTAC Counsel”) has acted as counsel to 7GC PTAC in various matters involving a range of issues and as counsel to 7GC PTAC in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby.
(b) In connection with any matter or dispute under this Agreement, 7GC PTAC hereby irrevocably waives and agrees not to assert, and agree to cause the Surviving Corporation or the Surviving Entity to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company, (ii) Prior Company Counsel’s representation of the Holder Representative and/or any of the Group Companies (collectively the Persons referenced in clauses (i) and (ii)collectively, the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC PTAC Counsel’s prior representation of 7GC PTAC and (iv) Prior 7GC PTAC Counsel’s representation of the Sponsor, any Subsidiary subsidiary of 7GC PTAC and/or any 7GC PTAC stockholders (collectively the Persons referenced in clauses (iii) and (iv)collectively, the “7GC PTAC Advised Parties”) prior to and after the Closing.
(c) 7GC PTAC further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving EntityCorporation, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Company Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement 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 the Holder Representative on behalf of the Company and shall not pass to or be claimed by 7GC, PTAC or the Surviving Corporation, or the Surviving Entity. 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 the Holder Representative and the Company, shall be controlled by the Holder Representative on behalf of the Company and shall not pass to or be claimed by 7GC, PTAC or the Surviving Corporation, or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC PTAC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(d) The Company and each of the Pre-Closing Holders Company Securityholders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving EntityCorporation, that all communications in any form or format whatsoever between or among any of Prior 7GC PTAC Counsel, 7GCPTAC, any of the 7GC PTAC Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC PTAC Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC PTAC Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation PTAC or the Surviving EntityCorporation. All 7GC PTAC Deal Communications that are attorney-client privileged (the “Privileged 7GC PTAC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation PTAC or the Surviving EntityCorporation; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC PTAC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, the Surviving Corporation PTAC or the Surviving EntityCorporation, on the one hand, and a third party other than the Holder Representative or the Sponsor on the other hand, 7GC, PTAC or the Surviving Corporation or the Surviving Entity may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC PTAC Deal Communications to such third party; provided, however, that neither 7GC PTAC nor the Surviving Corporation nor the Surviving Entity may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company Holder Representative or (ii) Privileged 7GC PTAC Deal Communications without the prior written consent of the Sponsor. In the event that 7GC, PTAC or the Surviving Corporation or the Surviving Entity is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC PTAC shall immediately (and, in any event, within two (2) Business Days) notify the Company Holder Representative in writing (including by making specific reference to this Section 8.19Section 8.20) so that the Company Holder Representative can seek a protective order and (ii) the Privileged 7GC PTAC Deal Communications, 7GC PTAC shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19Section 8.20) so that the Sponsor can seek a protective order and, in either case, 7GC PTAC agrees to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only the Holder Representative 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 Surviving Corporation or the Surviving EntityCorporation, 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. To the extent that files or other materials maintained by Prior 7GC PTAC Counsel constitute property of its clients, only the Sponsor and the 7GC PTAC Advised Parties shall hold such property rights and Prior 7GC PTAC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC PTAC Deal Communications by reason of any attorney-client relationship between Prior 7GC PTAC Counsel, on the one hand, and 7GCPTAC, 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.
(g) 7GC PTAC agrees on behalf of itself and the Surviving Corporation or the Surviving EntityCorporation, (i) to the extent that 7GC, PTAC or the Surviving Corporation or the Surviving Entity receives or takes physical possession of any Company Deal Communications or 7GC PTAC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC PTAC Advised Parties or any other Person, of the privileges or protections described in this Section 8.19Section 8.20, and (b) neither 7GC PTAC nor the Surviving Corporation or the Surviving Entity shall assert any claim that any of the Company Advised Parties, 7GC PTAC 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 or 7GC PTAC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company Holder Representative or the Sponsor, as applicable, waive the attorney-client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, PTAC or the Surviving Entity Corporation has the right to waive the attorney-client or other privilege, (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party and (iv) not to seek to obtain the 7GC PTAC Deal Communications from Prior 7GC PTAC Counsel so long as such 7GC PTAC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie Procter LLP and (“▇▇▇▇▇▇ LLP (each referred to herein as “Prior Company Counsel▇▇”) have each has acted as counsel to the Company in various matters involving a range of issues Target Companies and as counsel to the Company Seller in connection with the negotiation of this Agreement and consummation of the Ancillary DocumentsContemplated Transactions.
(b) Buyer hereby consents and agrees to, and agrees to cause the transactions contemplated hereby Target Companies to consent and thereby and (ii) agree to, ▇▇▇▇▇▇▇ representing the Seller after the Closing, including with respect to disputes in which the interests of the Seller may be directly adverse to Buyer and its Subsidiaries (including the Target Companies), even though ▇▇▇▇▇▇▇ LLP (“Prior 7GC Counsel”) has acted as counsel may have represented the Company or the Company’s Subsidiaries in a matter substantially related to 7GC in various any such dispute, or may be handling ongoing matters involving a range of issues for the Company or the Company’s Subsidiaries. Buyer further consents and as counsel agrees to, and agrees to 7GC cause the Target Companies to consent and agree to, the communication by ▇▇▇▇▇▇▇ to the Seller in connection with any such representation of any fact known to ▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇▇▇▇’▇ prior representation of the negotiation of this Agreement Company and the Ancillary Documents, and the transactions contemplated hereby and thereby.Company’s Subsidiaries.
(bc) In connection with any matter or dispute under this Agreementthe foregoing, 7GC Buyer hereby irrevocably waives and agrees not to assert, and agree agrees to cause the Surviving Corporation or the Surviving Entity Target Companies to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s ▇▇▇▇▇▇▇’▇ prior representation of the Company, Target Companies and (ii) Prior Company Counsel’s ▇▇▇▇▇▇▇’▇ representation of any of the Group Companies (collectively the Persons referenced in clauses (i) and (ii), the “Company Advised Parties”) Seller prior to and after the Closing, (iii) Prior 7GC Counsel’s prior representation of 7GC and (iv) Prior 7GC Counsel’s representation of the Sponsor, any Subsidiary of 7GC and/or any 7GC stockholders (collectively the Persons referenced in clauses (iii) and (iv), the “7GC Advised Parties”) prior to and after the Closing..
(cd) 7GC Buyer further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving EntityTarget Companies, that all communications in any form or format whatsoever between or among any of Prior Company Counsel▇▇▇▇▇▇▇, the Company, any of Target Companies and/or the Company Advised PartiesSeller, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, or any dispute arising under this Agreement (collectively, the “Company Deal Communications”) shall be deemed to be retained and owned collectively by the Company Advised PartiesSeller, shall be controlled by the Company Seller and shall not pass to or be claimed by 7GC, the Surviving CorporationBuyer, or the Surviving EntityTarget Companies. 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 the CompanySeller, shall be controlled by the Company Seller and shall not pass to or be claimed by 7GC, the Surviving Corporation, Buyer or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(d) The Company and each of the Pre-Closing Holders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving Entity, that all communications in any form or format whatsoever between or among any of Prior 7GC Counsel, 7GC, any of the 7GC Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving EntityTarget Companies. All 7GC Deal Communications that are attorney-client privileged (the “Privileged 7GC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, Buyer and/or the Surviving Corporation or the Surviving EntityTarget Companies, on the one hand, and a third party other than the Sponsor Seller, on the other hand, 7GC, the Surviving Corporation Buyer or the Surviving Entity Target Companies may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC Deal Communications to such third party; provided, however, that neither 7GC nor none of Buyer or the Surviving Corporation nor the Surviving Entity Target Companies may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company or (ii) Privileged 7GC Deal Communications without the prior written consent of the SponsorSeller. In the event that 7GC, Buyer or any of the Surviving Corporation or the Surviving Entity Target Companies is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC Buyer shall immediately promptly (and, in any event, within two (2) Business Days) notify the Company Seller in writing (including by making specific reference to this Section 8.19Section) so that the Company Seller can seek a protective order and (ii) the Privileged 7GC Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19) so that the Sponsor can seek a protective order and, in either case, 7GC Buyer agrees to use all commercially reasonable efforts to assist therewith..
(f) To the extent that files or other materials maintained by Prior Company Counsel ▇▇▇▇▇▇▇ constitute property of its clients, only the Company Advised Parties Seller 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 Surviving Corporation or the Surviving EntityTarget Companies, 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 partyhand. To the extent that files or other materials maintained by Prior 7GC Counsel constitute property of its clients, only the Sponsor and the 7GC Advised Parties shall hold such property rights and Prior 7GC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC Deal Communications by reason of any attorney-client relationship between Prior 7GC Counsel, on the one hand, and 7GC, 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.
(g) 7GC Buyer agrees on behalf of itself that it will not, and that it will cause the Surviving Corporation or the Surviving EntityTarget Companies not to, (i) to the extent that 7GC, the Surviving Corporation or the Surviving Entity receives or takes physical possession of any Company Deal Communications or 7GC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC Advised Parties or any other Person, of the privileges or protections described in this Section 8.19, and (b) neither 7GC nor the Surviving Corporation or the Surviving Entity shall assert any claim that any of the Company Advised Parties, 7GC 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 or 7GC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company or the Sponsor, as applicable, Seller waive the attorney-client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, Buyer or the Surviving Entity any Target Company has the right to waive the attorney-client or other privilege, privilege or (iiiii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company ▇▇▇▇▇▇▇. In furtherance of the foregoing, it shall not be a breach of any provision of this Agreement if prior to the Closing the Target Companies and/or the Seller, or any of their respective Representatives takes any action to protect from access or remove from the premises of the Target Companies (or any offsite back-up or other facilities) any Deal Communications, including without limitation by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications would be subject (any such action, a “Permitted Removal”). In the event that, notwithstanding any good faith attempts by the Seller, or any of their respective Representatives to achieve a privilege Permitted Removal of any Deal Communication, any copy, backup, image, or protection if they were being requested in other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Buyer (each, a proceeding by an unrelated third party “Residual Communication”), Buyer agrees that it will not, and (iv) that it will cause the Target Companies and their respective Representatives not to seek intentionally use or attempt to obtain the 7GC Deal Communications from Prior 7GC Counsel so long as such 7GC Deal Communications would be subject use any means to a privilege access, retrieve, restore, recreate, unarchive or protection if they were being requested in a proceeding by an unrelated third party.otherwise gain access to or view any Residual Communication for any purpose.
Appears in 1 contract
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie LLP and ▇▇▇▇▇▇ DLA Piper LLP (each referred to herein as US) (“Prior Company Counsel”) have each has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby and (ii) ▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇▇ LLP (“Prior 7GC Acquiror Counsel”) has acted as counsel to 7GC Acquiror in various matters involving a range of issues and as counsel to 7GC Acquiror in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby.
(b) In connection with any matter or dispute under this Agreement, 7GC Acquiror hereby irrevocably waives and agrees not to assert, and agree to cause the Final Surviving Corporation or the Surviving Entity Company to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company, (ii) Prior Company Counsel’s representation of the Holder Representative and/or any of the Group Companies (collectively the Persons referenced in clauses (i) and (ii)collectively, the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC Acquiror Counsel’s prior representation of 7GC Acquiror and (iv) Prior 7GC Acquiror Counsel’s representation of the Sponsor, any Subsidiary subsidiary of 7GC Acquiror and/or any 7GC stockholders Pre-Closing Acquiror Holders (collectively the Persons referenced in clauses (iii) and (iv)collectively, the “7GC Acquiror Advised Parties”) prior to and after the Closing.
(c) 7GC Acquiror further agrees, on behalf of itself and, after the Closing, on behalf of the Final Surviving Corporation or the Surviving EntityCompany, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Company Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement 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 the Holder Representative on behalf of the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, Acquiror or the Final Surviving EntityCompany. 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 the Holder Representative and the Company, shall be controlled by the Holder Representative on behalf of the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, Acquiror or the Final Surviving EntityCompany; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC Acquiror or any of its Affiliates (including, after the First Effective Time, the Final Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity Company 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.
(d) The Company and each of the Company Pre-Closing Holders further agrees, on behalf of itself and, after the Closing, on behalf of the Final Surviving Corporation and the Surviving EntityCompany, that all communications in any form or format whatsoever between or among any of Prior 7GC Acquiror Counsel, 7GCAcquiror, any of the 7GC Acquiror Advised Parties, Parties or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC Acquiror Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC Acquiror Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation Acquiror or the Final Surviving EntityCompany. All 7GC Acquiror Deal Communications that are attorney-client privileged (the “Privileged 7GC Acquiror Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation Acquiror or the Final Surviving EntityCompany; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC Acquiror or any of its Affiliates (including, after the First Effective Time, the Final Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity Company 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, the Surviving Corporation Acquiror or the Final Surviving EntityCompany, on the one hand, and a third party other than the Sponsor Holder Representative or the Sponsor, on the other hand, 7GC, the Surviving Corporation Acquiror or the Final Surviving Entity Company may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC Acquiror Deal Communications to such third party; provided, however, that neither 7GC Acquiror nor the Final Surviving Corporation nor the Surviving Entity Company may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company Holder Representative or (ii) Privileged 7GC Acquiror Deal Communications without the prior written consent of the Sponsor. In the event that 7GC, the Surviving Corporation Acquiror or the Final Surviving Entity Company is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC Acquiror shall immediately (and, in any event, within two (2) Business Days) notify the Company Holder Representative in writing (including by making specific reference to this Section 8.198.20) so that the Company Holder Representative can seek a protective order and (ii) the Privileged 7GC Acquiror Deal Communications, 7GC Acquiror shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.198.20) so that the Sponsor can seek a protective order and, in either case, 7GC Acquiror agrees to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only the Holder Representative 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 Final Surviving Corporation or the Surviving EntityCompany, on the other hand hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party. To the extent that files or other materials maintained by Prior 7GC Acquiror Counsel constitute property of its clients, only the Sponsor and the 7GC Acquiror Advised Parties shall hold such property rights and Prior 7GC Acquiror Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC Acquiror Deal Communications by reason of any attorney-client relationship between Prior 7GC Acquiror Counsel, on the one hand, and 7GCAcquiror, on the other hand hand, so long as such files or other materials would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
(g) 7GC Acquiror agrees on behalf of itself and the Final Surviving Corporation or the Surviving EntityCompany, (i) to the extent that 7GC, the Surviving Corporation Acquiror or the Final Surviving Entity Company receives or takes physical possession of any Company Deal Communications or 7GC Acquiror Deal Communications, (aA) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC Acquiror Advised Parties or any other Person, of the privileges or protections described in this Section 8.198.20, and (bB) neither 7GC Acquiror nor the Final Surviving Corporation or the Surviving Entity Company shall assert any claim that any of the Company Advised Parties, 7GC Acquiror 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 or 7GC Acquiror Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company Holder Representative or the Sponsor, as applicable, waive the attorney-client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, Acquiror or the Final Surviving Entity Company has the right to waive the attorney-client or other privilege, (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party and (iv) not to seek to obtain the 7GC Acquiror Deal Communications from Prior 7GC Acquiror Counsel so long as such 7GC Acquiror Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party. [Signature page follows.]
Appears in 1 contract
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto parties acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie Procter LLP and (“▇▇▇▇▇▇ LLP (each referred to herein as “Prior Company Counsel▇▇”) have each has acted as counsel to the Company in various matters involving a range of issues Company, the Stockholders and as counsel to the Company Sellers’ Representative in connection with the negotiation of this Agreement and consummation of the Ancillary DocumentsContemplated Transactions.
(b) Parent hereby consents and agrees to, and agrees to cause the transactions contemplated hereby Surviving Corporation to consent and thereby and (ii) agree to, ▇▇▇▇▇▇▇ representing the Stockholders and Sellers’ Representative after the Closing, including with respect to disputes in which the interests of the Stockholders and/or Sellers’ Representative may be directly adverse to Parent and its Subsidiaries (including the Surviving Corporation), and even though ▇▇▇▇▇▇▇ LLP (“Prior 7GC Counsel”) has acted as counsel may have represented the Company in a matter substantially related to 7GC in various any such dispute, or may be handling ongoing matters involving a range of issues for the Company. Parent further consents and as counsel agrees to, and agrees to 7GC cause the Surviving Corporation to consent and agree to, the communication by ▇▇▇▇▇▇▇ to the Stockholders and Sellers’ Representative in connection with any such representation of any fact known to ▇▇▇▇▇▇▇ arising by reason of ▇▇▇▇▇▇▇’▇ prior representation of the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and therebyCompany.
(bc) In connection with any matter or dispute under this Agreementthe foregoing, 7GC Parent hereby irrevocably waives and agrees not to assert, and agree agrees to cause the Surviving Corporation or the Surviving Entity to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s ▇▇▇▇▇▇▇’▇ prior representation of the Company, Company and (ii) Prior Company Counsel’s representation of any of the Group Companies (collectively the Persons referenced in clauses (i) and (ii), the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC Counsel’s prior representation of 7GC and (iv) Prior 7GC Counsel’s ▇▇▇▇▇▇▇’▇ representation of the Sponsor, any Subsidiary of 7GC and/or any 7GC stockholders (collectively the Persons referenced in clauses (iii) Stockholders and (iv), the “7GC Advised Parties”) Sellers’ Representative prior to and after the Closing.
(cd) 7GC Parent further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving EntityCorporation, that all communications in any form or format whatsoever between or among any of Prior Company Counsel▇▇▇▇▇▇▇, the Company, Sellers’ Representative and/or any of the Company Advised PartiesStockholder, or any of their respective Representatives directors, officers, employees or other Representatives, that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, Contemplated Transactions or any dispute arising under this Agreement (collectively, the “Company Deal Communications”) ), which immediately prior to the Closing, shall be deemed to be retained and owned collectively by the Company Advised PartiesStockholders, shall be controlled by Sellers’ Representative on behalf of the Company Stockholders and shall not pass to or to, be claimed by 7GC, or used in any way by either of Parent or the Surviving Corporation, or the Surviving Entity. 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 Sellers’ Representative and the CompanyStockholders, shall be controlled by Sellers’ Representative on behalf of the Company Stockholders and shall not pass to or be claimed by 7GC, either of Parent or the Surviving Corporation, or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(d) The Company and each of the Pre-Closing Holders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving Entity, that all communications in any form or format whatsoever between or among any of Prior 7GC Counsel, 7GC, any of the 7GC Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity. All 7GC Deal Communications that are attorney-client privileged (the “Privileged 7GC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, the Surviving Corporation any of Parent or the Surviving EntityCorporation, on the one hand, and a third party other than the Sponsor Stockholders and/or Sellers’ Representative, on the other hand, 7GC, Parent or the Surviving Corporation or the Surviving Entity may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC Deal Communications to such third party; provided, however, that neither 7GC Parent nor the Surviving Corporation nor the Surviving Entity may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company Sellers’ Representative, which shall not be unreasonably withheld, conditioned or (ii) Privileged 7GC Deal Communications without the prior written consent of the Sponsor. In the event that 7GC, the Surviving Corporation or the Surviving Entity is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Company in writing (including by making specific reference to this Section 8.19) so that the Company can seek a protective order and (ii) the Privileged 7GC Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19) so that the Sponsor can seek a protective order and, in either case, 7GC agrees to use all commercially reasonable efforts to assist therewithdelayed.
(f) To the extent that files or other materials maintained by Prior Company Counsel ▇▇▇▇▇▇▇ constitute property of its clientsStockholders, only the Company Advised Parties Sellers’ Representative 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 Surviving Corporation either Parent or the Surviving EntityCompany, 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. To the extent that files or other materials maintained by Prior 7GC Counsel constitute property of its clients, only the Sponsor and the 7GC Advised Parties shall hold such property rights and Prior 7GC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC Deal Communications by reason of any attorney-client relationship between Prior 7GC Counsel, on the one hand, and 7GC, 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.
(g) 7GC agrees on behalf of itself and the Surviving Corporation or the Surviving Entity, (i) Prior to the extent that 7GCClosing, the Surviving Corporation Company, Sellers’ Representative and/or any Stockholder, or any of their respective directors, officers, employees or other Representatives, may take any action to protect from access or remove from the Surviving Entity receives premises of the Company (or takes physical any offsite back-up or other facilities) any Deal Communications, including without limitation by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Company Deal Communications (any such action, a “Permitted Removal”). In the event that, notwithstanding any good faith attempts by Sellers’ Representative or 7GC any Stockholder, or any of their respective directors, officers, employees or other Representatives to achieve a Permitted Removal of any Deal CommunicationsCommunication, any copy, backup, image, or other form or version or electronic vestige of any portion of such Deal Communication remains accessible to or discoverable or retrievable by Parent (a) such physical possession or receipt shall each, a “Residual Communication”), Parent agrees that it will not, and that it will cause the Surviving Corporation, and its directors, officers, employees and other Representatives not to, intentionally use or attempt to use any means to access, retrieve, restore, recreate, unarchive or otherwise gain access to or view any Residual Communication for any purpose.
(h) The parties understand and agree that nothing in any waythis Agreement, including the foregoing provisions regarding the assertions of privilege and conflicts of interest, shall be deemed to be a waiver by of any of the Company Advised Parties, 7GC Advised Parties or any other Person, of the privileges or protections described in this Section 8.19, and (b) neither 7GC nor the Surviving Corporation or the Surviving Entity shall assert any claim that any of the Company Advised Parties, 7GC Advised Parties or any other Person waived the applicable attorney-client privilege, attorney work-product protection . The parties further understand and agree that the parties have each undertaken reasonable efforts to prevent the disclosure of confidential 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 or 7GC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company or the Sponsor, as applicable, waive the attorney-client or other privilege, or by otherwise asserting that 7GCprivileged information. Notwithstanding those efforts, the Surviving Corporation, or parties further understand and agree that the Surviving Entity has consummation of the right to waive Contemplated Transactions may result in the attorney-client or other privilege, (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would inadvertent disclosure of information that may be confidential and/or subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party claim of privilege. The parties further understand and (iv) not to seek to obtain the 7GC Deal Communications from Prior 7GC Counsel so long as such 7GC Deal Communications would agree that any disclosure of information that may be confidential and/or subject to a claim of privilege will not prejudice or protection if they were being requested in otherwise constitute a proceeding by an unrelated third partywaiver of any claim of privilege.
Appears in 1 contract
Sources: Merger Agreement (Opko Health, Inc.)
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie LLP and ▇▇▇▇▇▇ LLP (each referred to herein as “Prior Company Counsel”) have each has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP (“Prior 7GC Counsel”) has acted as counsel to 7GC in various matters involving a range of issues and as counsel to 7GC in connection with the negotiation of this Agreement and the Ancillary DocumentsAdditional Agreements, and the transactions contemplated hereby and thereby.
(b) In connection with any matter or dispute under this Agreement, 7GC Purchaser hereby irrevocably waives and agrees not to assert, and agree to cause the Surviving Corporation or Company Group after the Surviving Entity Closing to irrevocably waive and agree not to assertasset, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company, Company and (ii) Prior Company Counsel’s representation of the Stockholders’ Representative and/or any member of the Company Group Companies (collectively the Persons referenced in clauses (i) and (ii)collectively, the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC Counsel’s prior representation of 7GC and (iv) Prior 7GC Counsel’s representation of the Sponsor, any Subsidiary of 7GC and/or any 7GC stockholders (collectively the Persons referenced in clauses (iii) and (iv), the “7GC Advised Parties”) prior to and after the Closing.
(c) 7GC Purchaser further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving EntityCompany Group, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Company Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement 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 the Stockholders’ Representative on behalf of the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, Purchaser or the Surviving EntityCompany Group 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 the Stockholders’ Representative and the Company, shall be controlled by the Stockholders’ Representative on behalf of the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, Purchaser or the Surviving EntityCompany Group after the Closing; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC the Purchaser or any of its Affiliates (including, after the First Effective TimeClosing, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity Company Group 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.
(d) The Company and each of the Pre-Closing Holders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving Entity, that all communications in any form or format whatsoever between or among any of Prior 7GC Counsel, 7GC, any of the 7GC Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity. All 7GC Deal Communications that are attorney-client privileged (the “Privileged 7GC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, the Surviving Corporation Purchaser or the Surviving EntityCompany Group, on the one hand, and a third party other than the Sponsor Stockholders’ Representative or the Company, on the other hand, 7GC, the Surviving Corporation Purchaser or the Surviving Entity Company Group may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC Deal Communications to such third party; provided, however, that neither 7GC nor Purchaser or the Surviving Corporation nor the Surviving Entity Company Group may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company or (ii) Privileged 7GC Deal Communications without the prior written consent of the SponsorStockholders’ Representative. In the event that 7GC, the Surviving Corporation Purchaser or the Surviving Entity Company Group is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC Purchaser shall immediately (and, in any event, within two (2) Business Days) notify the Company Stockholders’ Representative in writing (including by making specific reference to this Section 8.19Section 13.19) so that the Company Stockholders’ Representative can seek a protective order and (ii) the Privileged 7GC Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19) so that the Sponsor can seek a protective order and, in either case, 7GC Purchaser agrees to use all commercially reasonable efforts to assist therewith.
(fe) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only the Company Advised Parties Stockholders’ Representative 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 Surviving Corporation or Company Group after the Surviving Entity, 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. To the extent that files or other materials maintained by Prior 7GC Counsel constitute property of its clients, only the Sponsor and the 7GC Advised Parties shall hold such property rights and Prior 7GC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC Deal Communications by reason of any attorney-client relationship between Prior 7GC Counsel, on the one hand, and 7GCClosing, 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.
(gf) 7GC Purchaser agrees on behalf of itself and the Surviving Corporation or Company Group after the Surviving EntityClosing, (i) to the extent that 7GCPurchaser or, after the Closing, the Surviving Corporation or the Surviving Entity Company Group receives or takes physical possession of any Company Deal Communications or 7GC Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC Advised Parties or any other Person, of the privileges or protections described in this Section 8.19section, and (b) neither 7GC Purchaser nor the Surviving Corporation or Company Group after the Surviving Entity Closing shall assert any claim that any of the Company Advised Parties, 7GC 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 or 7GC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company Stockholders’ Representative or the Sponsor, as applicable, Company waive the attorney-client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, Purchaser or the Surviving Entity Company Group after the Closing has the right to waive the attorney-client or other privilege, privilege and (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party and (iv) not to seek to obtain the 7GC Deal Communications from Prior 7GC Counsel so long as such 7GC Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Sources: Share Exchange Agreement (Health Sciences Acquisitions Corp)
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie LLP and ▇▇▇▇▇▇ LLP Winthrop & Weinstine, P.A. (each referred to herein as “Prior Company Counsel”) have each has acted as counsel to the Company in various matters involving a range of issues and as counsel to the Company in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby and (ii) ▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇▇ LLP (“Prior 7GC PTIC II Counsel”) has acted as counsel to 7GC PTIC II in various matters involving a range of issues and as counsel to 7GC PTIC II in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and thereby.
(b) In connection with any matter or dispute under this Agreement, 7GC PTIC II hereby irrevocably waives and agrees not to assert, and agree to cause the Surviving Corporation or the Surviving Entity Company to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s prior representation of the Company, (ii) Prior Company Counsel’s representation of the Seller Representative and/or any of the Group Companies (collectively the Persons referenced in clauses (i) and (ii)collectively, the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC PTIC II Counsel’s prior representation of 7GC PTIC and (iv) Prior 7GC PTIC II Counsel’s representation of the Sponsor, any Subsidiary subsidiary of 7GC PTIC II and/or any 7GC PTIC II stockholders (collectively the Persons referenced in clauses (iii) and (iv)collectively, the “7GC PTIC II Advised Parties”) prior to and after the Closing).
(c) 7GC PTIC II further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving Entityeach Group Company, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the Company, any of the Company Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement 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 the Sellers’ Representative on behalf of the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, PTIC II or the Surviving Entityany Group Company. All Company Deal Communications that are attorney-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 the Sellers’ Representative and the Company, shall be controlled by the Sellers’ Representative on behalf of the Company and shall not pass to or be claimed by 7GC, the Surviving Corporation, PTIC II or the Surviving Entityany Group Company; provided, furtherhowever, that nothing contained herein shall be deemed to be a waiver by 7GC PTIC II or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity Company 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.
(d) The Company and each of the Pre-Closing Holders Rolling Company Unitholders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving Entityeach Group Company, that all communications in any form or format whatsoever between or among any of Prior 7GC PTIC II Counsel, 7GCPTIC II, any of the 7GC PTIC II Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC PTIC II Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC PTIC II Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation PTIC II or the Surviving Entityany Group Company. All 7GC PTIC II Deal Communications that are attorney-client privileged (the “Privileged 7GC PTIC II Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation PTIC II or the Surviving Entityany Group Company; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC PTIC II or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity Company 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GC, the Surviving Corporation PTIC II or the Surviving Entityany Group Company, on the one hand, and a third party other than the Sellers’ Representative or the Sponsor on the other hand, 7GC, the Surviving Corporation PTIC II or the Surviving Entity Company may assert the attorney-attorney client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC PTIC II Deal Communications to such third party; provided, however, that neither 7GC PTIC II nor the Surviving Corporation nor the Surviving Entity Company may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company Sellers’ Representative, or (ii) Privileged 7GC PTIC II Deal Communications without the prior written consent of the Sponsor. In the event that 7GC, the Surviving Corporation PTIC II or the Surviving Entity Company is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (iy) the Privileged Company Deal Communications, 7GC PTIC II shall immediately (and, in any event, within two (2) Business Days) notify the Company Sellers’ Representative in writing (including by making specific reference to this Section 8.19Section 9.20) so that the Company Sellers’ Representative can seek a protective order and (iiz) the Privileged 7GC PTIC II Deal Communications, 7GC PTIC II shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19Section 9.20) so that the Sponsor can seek a protective order and, in either case, 7GC PTIC II agrees to use all commercially reasonable efforts to assist therewith.
(f) To the extent that files or other materials maintained by Prior Company Counsel constitute property of its clients, only the Sellers’ Representative 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-attorney client relationship between Prior Company Counsel, on the one hand, and the Surviving Corporation or the Surviving EntityCompany, 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. To the extent that files or other materials maintained by Prior 7GC PTIC II Counsel constitute property of its clients, only the Sponsor and the 7GC PTIC II Advised Parties shall hold such property rights and Prior 7GC PTIC II Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC PTIC II Deal Communications by reason of any attorney-client relationship between Prior 7GC PTIC II Counsel, on the one hand, and 7GCPTIC II, 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.
(g) 7GC PTIC II agrees on behalf of itself and the Surviving Corporation or the Surviving EntityCompany, (i) to the extent that 7GC, the Surviving Corporation PTIC II or the Surviving Entity Company receives or takes physical possession of any Company Deal Communications or 7GC PTIC II Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC PTIC II Advised Parties or any other Person, of the privileges or protections described in this Section 8.19Section 9.20, and (b) neither 7GC PTIC II nor the Surviving Corporation or the Surviving Entity Company shall assert any claim that any of the Company Advised Parties, 7GC PTIC II Advised Parties or any other Person waived the attorney-attorney client privilege, attorney work-work product protection or any other right or expectation of client confidence applicable to any such materials or communications, (ii) not to access or use the Company Deal Communications or 7GC PTIC II Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company Sellers’ Representative or the Sponsor, as applicable, waive the attorney-attorney client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, PTIC II or the Surviving Entity Company has the right to waive the attorney-attorney client or other privilege, (iii) not to seek to obtain the Company Deal Communications from Prior Company Counsel so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party and (iv) not to seek to obtain the 7GC PTIC II Deal Communications from Prior 7GC PTIC II Counsel so long as such 7GC PTIC II Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Sources: Business Combination Agreement (Proptech Investment Corp. Ii)
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of the Parties hereto acknowledges and agrees that (i) ▇▇▇▇▇▇▇ Coie LLP and ▇▇▇▇▇▇ LLP (each referred to herein as “Prior Company Counsel”) have each Cooley has acted as counsel to the Company Privateer in various matters involving a range of issues and as counsel to the Company Privateer in connection with the negotiation of this Agreement and consummation of the Ancillary Documents, and the transactions contemplated hereby and thereby and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP (“Prior 7GC Counsel”) has acted as counsel to 7GC in various matters involving a range of issues and as counsel to 7GC in connection with the negotiation of this Agreement and the Ancillary Documents, and the transactions contemplated hereby and therebyContemplated Transactions.
(b) In connection with any matter or dispute under this Agreement, 7GC each of Tilray and Merger Sub hereby irrevocably waives and agrees not to assert, and agree agrees to cause the Surviving Corporation or Company following the Surviving Entity Closing to irrevocably waive and not to assert, any conflict of interest arising from or in connection with (i) Prior Company Counsel’s ▇▇▇▇▇▇’▇ prior representation of the Company, Privateer and (ii) Prior Company Counsel’s ▇▇▇▇▇▇’▇ representation of the Stockholder Representative and/or any of the Group Companies Securityholders (collectively the Persons referenced in clauses (i) and (ii)collectively, the “Company Advised Parties”) prior to and after the Closing, (iii) Prior 7GC Counsel’s prior representation of 7GC and (iv) Prior 7GC Counsel’s representation of the Sponsor, any Subsidiary of 7GC and/or any 7GC stockholders (collectively the Persons referenced in clauses (iii) and (iv), the “7GC Advised Protected Parties”) prior to and after the Closing.
(c) 7GC Each of Tilray and Merger Sub further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation or the Surviving EntityCompany, that all communications in any form or format whatsoever between or among any of Prior Company Counsel, the CompanyCooley, any of the Company Advised Protected Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement Contemplated 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 Protected Parties, shall be controlled by the Company Stockholder Representative on behalf of the Protected Parties and shall not pass to or be claimed by 7GCTilray or Merger Sub or, following the Closing, the Surviving Corporation, or the Surviving EntityCompany. All Company Deal Communications that are subject to the attorney-client privileged privilege (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 the CompanyStockholder Representative and the Protected Parties, shall be controlled by the Company Stockholder Representative on behalf of the Protected Parties, and shall not pass to or be claimed by 7GCany of Tilray, Merger Sub or, following the Closing, the Surviving Corporation, or the Surviving EntityCompany; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC any of Tilray, Merger Sub or any of its their respective Affiliates (including, after the First Effective TimeClosing, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity Company 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.
(d) The Company and each of the Pre-Closing Holders further agrees, on behalf of itself and, after the Closing, on behalf of the Surviving Corporation and the Surviving Entity, that all communications in any form or format whatsoever between or among any of Prior 7GC Counsel, 7GC, any of the 7GC Advised Parties, or any of their respective Representatives that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or, beginning on the date of this Agreement, any dispute arising under this Agreement (collectively, the “7GC Deal Communications”) shall be deemed to be retained and owned collectively by the 7GC Advised Parties, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity. All 7GC Deal Communications that are attorney-client privileged (the “Privileged 7GC Deal Communications”) shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by 7GC, the Surviving Corporation or the Surviving Entity; provided, further, that nothing contained herein shall be deemed to be a waiver by 7GC or any of its Affiliates (including, after the First Effective Time, the Surviving Corporation and its Affiliates and after the Second Effective Time, the Surviving Entity 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.
(e) Notwithstanding the foregoing, in the event that a dispute arises between 7GCTilray and Merger Sub or, after the Closing, the Surviving Corporation or the Surviving EntityCompany, on the one hand, and a third party other than the Sponsor Stockholder Representative or the Securityholders, on the other hand, 7GCTilray and Merger Sub or, following the Closing, the Surviving Corporation or the Surviving Entity Company, may assert the attorney-client privilege to prevent the disclosure of the Privileged Company Deal Communications and Privileged 7GC Deal Communications to such third party; provided, however, that neither 7GC nor Tilray or Merger Sub, nor, following the Closing, the Surviving Corporation nor the Surviving Entity Company may waive such privilege with respect to (i) Privileged Company Deal Communications without the prior written consent of the Company Stockholder Representative (such consent not to be unreasonably withheld, conditioned, or (ii) Privileged 7GC Deal Communications without the prior written consent of the Sponsordelayed). In the event that 7GCTilray or Merger Sub or, following the Surviving Corporation or the Surviving Entity Closing, any Protected Party is legally required by governmental order or otherwise of a Governmental Body to access or obtain a copy of all or a portion of (i) the Privileged Company Deal Communications, 7GC Tilray shall immediately (and, in any event, within two (2) five Business Days) notify the Company Stockholder Representative in writing (including by making specific reference to this Section 8.19Section 12.12(d)) so that the Company Stockholder Representative can seek a protective order and (ii) the Privileged 7GC Deal Communications, 7GC shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section 8.19) so that the Sponsor can seek a protective order and, in either case, 7GC Tilray agrees to use all commercially reasonable efforts to assist therewith.
(fe) To the extent that files or other materials Privileged Deal Communications maintained by Prior Company Counsel Cooley constitute property of its clients, only the Company Advised Stockholder Representative and the Protected Parties shall hold such property rights and Prior Company Counsel Cooley 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 CounselCooley, on the one hand, and the Surviving Corporation or the Surviving EntityPrivateer, 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. To the extent that files or other materials maintained by Prior 7GC Counsel constitute property of its clients, only the Sponsor and the 7GC Advised Parties shall hold such property rights and Prior 7GC Counsel shall have no duty to reveal or disclose any such files or other materials or any Privileged 7GC Deal Communications by reason of any attorney-client relationship between Prior 7GC Counsel, on the one hand, and 7GC, 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.
(gf) 7GC Each of Tilray and Merger Sub agrees on behalf of itself and and, following the Closing, the Surviving Corporation or the Surviving EntityCompany, (i) to the extent that 7GCTilray or Merger Sub or, after the Closing, the Surviving Corporation or the Surviving Entity Company, receives or takes physical possession of any Company Deal Communications or 7GC Privileged Deal Communications, (a) such physical possession or receipt shall not, in any way, be deemed a waiver by any of the Company Advised Parties, 7GC Advised Protected Parties or any other Person, of the privileges or protections described in this Section 8.19Section 12.12, and (b) neither 7GC nor Tilray or Merger Sub nor, following the Closing, the Surviving Corporation or the Surviving Entity Company shall (i) assert any claim that any of the Company Advised Parties, 7GC Advised Protected 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 Privileged Deal Communications, or communications, (ii) not to access or use the Company Deal Communications or 7GC Deal Communications, including by way of review of any electronic data, communications or other information, or by seeking to have the Company or the Sponsor, as applicable, waive the attorney-client or other privilege, or by otherwise asserting that 7GC, the Surviving Corporation, or the Surviving Entity has the right to waive the attorney-client or other privilege, (iii) not to seek to obtain the Company Privileged Deal Communications from Prior Company Counsel Cooley so long as such Company Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party and (iv) not to seek to obtain the 7GC Deal Communications from Prior 7GC Counsel so long as such 7GC Privileged Deal Communications would be subject to a privilege or protection if they were being requested in a proceeding by an unrelated third party.
Appears in 1 contract
Sources: Merger Agreement (Tilray, Inc.)