Asset Purchase Agreement Attorney Client Privilege
If the parties do not agree to prevent the buyer from accessing the applicable communications after the conclusion, they could instead include in the merger agreement a clause stipulating that the buyer may not use such communications or their content against the selling shareholders or their representative in disputes related to the merger agreement. As with the alternative #1 mentioned above, this could not prevent the lien from being transferred to the buyer and has the obvious disadvantage for selling shareholders that the buyer could see the content of such messages, but it could improve the risk of using these communications against them. Section 1.1 of the Agreement states that Seller would transfer all “right, title and interest” of Seller in all of Seller`s assets, including “all files” and “all inventory”, and that Buyer would purchase. Section 1.1 also provided that seller`s transfer excluded “excluded assets” defined to include “seller`s rights under this Agreement or in accordance with this Agreement and agreements entered into under this Agreement”. Section 8.9 of the Agreement provides that “the parties intend that [the buyer] shall have the right, at any time after the conclusion, to assert or waive, at its discretion, the protection of labour products, attorneys` privileges and other similar protections and privileges with respect to the assets and liabilities assumed”. First, for the implied reason of Great Hill, the lien could be considered nullified if the buyer has access to these communications after the conclusion. Some agreements now reveal a language that says the buyer won`t have access to such messages, but that`s probably not right. While they may not have access to the lawyer`s files, there will be a lot of communications on servers or files that the buyer will take care of and that they could access, intentionally or accidentally. Given that, in this scenario, a party who is not in the lien entry has been able to access the content of the corresponding communications, it is likely that a court will find that the applicable privilege has been waived. The parties could include in the merger agreement a “recovery and non-waiver” in protection orders in the context of Discovery, in order to avoid this. Such language would say that the buyer`s a posteriori access to such communications does not waive the rights of the selling shareholders or their representative with regard to the privilege associated with them or otherwise affect them.
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