Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of Buyer, the Company and the Seller acknowledges that: (i) the Company and the Seller have retained ▇▇▇▇▇▇▇ Procter LLP (“▇▇▇▇▇▇▇”) to act as their counsel in connection with the Contemplated Transactions and that ▇▇▇▇▇▇▇ has not acted as counsel for any other Person in connection with the Contemplated Transactions and that no other Party or Person has the status of a client of ▇▇▇▇▇▇▇ for conflict of interest or any other purposes as a result thereof; and (ii) Buyer has retained Fogler, ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ & Associates to act as its counsel in connection with the transactions contemplated hereby and that neither Fogler, ▇▇▇▇▇▇▇▇ LLP nor ▇▇▇▇▇▇▇▇ & Associates has acted as counsel for the Company or any of its Subsidiaries or the Seller in connection with the transactions contemplated hereby for conflict of interest or any other purposes. (b) Each of Buyer, the Company and the Seller hereby (a) waives, on behalf of themselves and each of their Affiliates any claim they have or may have that ▇▇▇▇▇▇▇ has a conflict of interest in connection with or is otherwise prohibited from engaging in such representation; (b) agrees that, in the event that a dispute arises after the Closing between Buyer or any of its Affiliates (including the Company) and the Seller or any of its Affiliates that relates to this Agreement or the transactions contemplated hereby, ▇▇▇▇▇▇▇ may represent the Seller in such dispute even though the interest of any such parties may be directly adverse to Buyer or any of its Affiliates (including the Company). (c) Each of Buyer, the Company and the Seller, for themselves and their respective Affiliates (including, as applicable, the Company), further agree that, as to all pre-Closing communications between or among ▇▇▇▇▇▇▇, the Company and/or the Seller that relate in any way to the Contemplated Transactions, the attorney-client privilege and all other rights to any evidentiary privilege belong to the Seller and may be controlled by the Seller and shall not pass to or be claimed by Buyer or any Group Company. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Company or any of their respective Affiliates, on the one hand, and a third Person other than a Party or any third-party beneficiary to this Agreement after the Closing, on the other hand, the Company may assert the attorney-client privilege to prevent disclosure of confidential communications by ▇▇▇▇▇▇▇ to such third party. (d) Prior to the Closing (but, for the avoidance of doubt, not on or following Closing), the Seller and the Group Companies may, to the extent not prohibited by any Applicable Law or Contractual Obligation, delete or remove all documents, emails and other non-email electronic documents concerning the negotiation or drafting of this Agreement and the Transaction Documents, or any other agreement previously contemplated by the Group Companies which, if consummated, would have resulted in a transaction substantially similar to the ones contemplated by this Agreement, which are protected by the attorney-client or work product privileges. It is acknowledged and agreed to by the parties that a failure by the Group Companies and/or the Seller to remove materials identified in the foregoing sentence, to the extent that such materials are otherwise protected by the attorney-client or work product privileges, is inadvertent and that the Seller shall, after receiving written notice from Buyer of said failure, to the extent discovered and known by Buyer to constitute materials identified in the foregoing sentence, have ninety (90) days (the “Recovery Period”) to request the return of such documents from Buyer, the Company and its Subsidiaries. At all times prior to the lapse of the Recovery Period, Buyer agrees not to knowingly take any actions (and will cause its Subsidiaries (including the Company and its Subsidiaries following the Closing) not to knowingly take any actions) with regard to the documents that would be inconsistent with such claims of privilege.
Appears in 1 contract
Acknowledgement; Waiver of Conflicts; Retention of Privilege. (a) Each of Buyer, the Company and the Seller acknowledges that: (i) that the Company and the Seller have retained ▇▇▇▇▇▇▇ Procter LLP (“Goodwin”) and ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇” and together with Goodwin, the “Seller Firms”) to act as their counsel in connection with the Contemplated Transactions and that ▇▇▇▇▇▇▇ has the Seller Firms have not acted as counsel for any other Person in connection with the Contemplated Transactions and that no other Party or Person has the status of a client of ▇▇▇▇▇▇▇ either of the Seller Firms for conflict of interest or any other purposes as a result thereof; and (ii) Buyer has retained Fogler, ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ & Associates to act as its counsel in connection with the transactions contemplated hereby and that neither Fogler, ▇▇▇▇▇▇▇▇ LLP nor ▇▇▇▇▇▇▇▇ & Associates has acted as counsel for the Company or any of its Subsidiaries or the Seller in connection with the transactions contemplated hereby for conflict of interest or any other purposes.
(b) Each of Buyer, the Company and the Seller hereby (ai) waives, on behalf of themselves and each of their Affiliates any claim they have or may have that ▇▇▇▇▇▇▇ either of the Seller Firms has a conflict of interest in connection with or is otherwise prohibited from engaging in such representation; and (bii) agrees that, in the event that a dispute arises after the Closing between Buyer or any of its Affiliates (including the Company) and the Seller or any of its Affiliates that relates to this Agreement or Affiliates, each of the transactions contemplated hereby, ▇▇▇▇▇▇▇ Seller Firms may represent the Seller in such dispute even though the interest of any such parties may be directly adverse to Buyer or any of its Affiliates (including the Company)) and even though either or both of the Seller Firms may have represented the Company in a matter substantially related to such dispute.
(c) Each of Buyer, the Company and the Seller, for themselves and their respective Affiliates (including, as applicable, the Company), further agree that, as to all pre-Closing communications between or among ▇▇▇▇▇▇▇the Seller Firms, the Company and/or the Seller that relate in any way to the Contemplated Transactions, the attorney-client privilege and all other rights to any evidentiary privilege belong to the Seller and may be controlled by the Seller and shall not pass to or be claimed by Buyer or any Group the Company. Notwithstanding the foregoing, in the event that a dispute arises between Buyer, the Company or any of their respective Affiliates, on the one hand, and a third Person other than a Party or any third-party beneficiary to this Agreement after the Closing, on the other hand, the Company may assert the attorney-client privilege to prevent disclosure of confidential communications by ▇▇▇▇▇▇▇ either Seller Firm to such third party.
(d) Prior to the Closing (but, for the avoidance of doubt, not on or following Closing), the Seller and the Group Companies may, to the extent not prohibited by any Applicable Law or Contractual Obligation, Company may delete or remove all documents, emails and other non-email electronic documents concerning the negotiation or drafting of this Agreement and the Transaction Documents, or any other agreement previously contemplated by the Group Companies Company which, if consummated, would have resulted in a transaction substantially similar to the ones contemplated by this Agreement, which are protected by the attorney-client or work product privileges. It is acknowledged and agreed to by the parties that a failure by the Group Companies Company and/or the Seller to remove materials identified in the foregoing sentence, to the extent that such materials are otherwise protected by the attorney-client or work product privileges, is inadvertent and that the Seller shall, after receiving written notice from Buyer of said failure, to the extent discovered and known by Buyer to constitute materials identified in the foregoing sentence, have ninety (90) days (the “Recovery Period”) to request the return of such documents from Buyer, Buyer and the Company and its SubsidiariesCompany. At all times prior to the lapse of the Recovery Period, Buyer agrees not to knowingly take any actions (and will cause its Subsidiaries (including the Company and its Subsidiaries following the Closing) not to knowingly take any actions) with regard to the documents that would be inconsistent with such claims of privilege.
Appears in 1 contract