JOINT DEFENSE, COMMON INTEREST AND
`CONFIDENTIALITY AGREEMENT
`
`.lOlN'l‘ DEFENSE, COMMON INTEREST AND CONFIDENTIALITY
`This
`AGREEMENT (this “/agreement”) is hereby entered into by and among the undersigned
`attorneys (hereinafter referred to individually as a “Psrty" and collectively as |.hc “l‘ttrties") on
`their own behalf and on behalf of their clients in contemplation of potential
`investigation,
`litigation, and/or other proceedings relating to the acquisition of Pace pic by ARRIS Group,
`Inc. (hereinafter termed as I.he “'|'ransaction").
`iegal and
`WHEREAS,
`the Parties have undertaken and may undertake factual.
`economic research and analysis, and the Parties are of the opinion that it is in the best interests
`of their clients for the Parties to exchange certain information, pool individual work product,
`and cooperate in a joint defense effort; and
`WHEIUEAS. cooperation in such a joint defense effort will necessarily involve the
`exchange of contidential business,
`financial,
`technical and other information, as well as
`information that is otherwise a privileged attorneyiclient conirnunication andfor attorney work
`product; anti
`in
`their clients share a cornnton interest
`the Parties recognize that
`WI-ll?‘,Rl£AS,
`resolving any antitrust and competition issues concerning the Transaction under all applicable
`laws and thnt a joint defense effort will promote evaluation and preparation of their respective
`defenses; and
`Wl:ll'~IREAS, the Parties and their clients rely on the joint defense exception to the
`waiver of the attorney/client and attorney work product privileges; and
`
`WHEREAS the Parties and their respective clients wish to continue to pursue their
`common interests and to avoid any suggestion ofwaivcr ofthe confidentiality or immunity of
`communications and documents protected by the attorney-client privilege, the attorney work
`product doctrine, or any other applicable privileges or intrnunitics under applicable laws; and
`NOW, THEREFORE, in consideration of the mutual terms and covenants herein, the
`Parties memorialize their preexisting agreement and further agree as follows:
`
`All non—public information, doeutncnls, data, opinions, strategies or
`1.
`other materials in any form, including oral, written or electronic communications. excliangcd or
`communicated in the past or Future by whatever means between or among the Parties and their
`clients in connection with thejoint defense efforts pursuant to and in connection with defense of
`the Transaction (hereinafter referred to collectively as “Joint Defense lnl"orination"). shall be
`deemed subject to the terms of this Agreement. Wherever possible. Joint l)eI‘cnse ln!”orrnation
`shall be labeled as “Joint Defense information - Privileged and Confidential,“ although the
`failure to do so will not preclude the information from being treated as Joint Defense
`Information subject to the terms ofthis Agreement.
`
`Each. Party affinns that Joint Defense Inforrnation includes information
`2.
`that has been communicated to counsel in confidence, by one or both of the Parties’ clients, for
`l
`\\l)L‘»lM019lI0t‘»l)00l|~I:$nS04Rvl
`
`.
`
`_
`
`,
`
`_
`
`Exhibit 2093
`
`ARR¥S v. TQ DELTA
`
`IPR20 E 6-D0429
`
`Page 1 of12
`
`Page 1 of 12
`
`

`
`the purpose of securing legal advice and representation and attorney-work product and that all
`such Joint Defense Information is therefore subject to the attorneytclient andfor attorney work
`product privilege belonging to the client, or as applicable, subject to the joint defense privilege or
`any other applicable privilege, which privilege may not be waived by any Party or its client
`without the prior consent of the client entitled to assert such privilege. Any inadvertent or
`purposeful disclosure by any Party or its client of infonnation exchanged pursuant to this
`Agreement shall not constitute a waiver of any privilege or protection of any other Party or its
`client.
`
`The Parties hereby agree that to the extent that Joint Defense Infonnation
`3.
`is disclosed to them, it will be kept confidential and disclosed only to the following persons who
`will maintain its confidentiality: (i) the signatories to this Agreement and the partners, associates,
`staff and other employees of their respective firms who are working on the joint defense effort
`and/or any ensuing investigation,
`litigation, or other proceeding ("Proceeding”) in connection
`with the Transaction, (ii) economic consultants retained by any Party or its client to assist in the
`joint defense effort and any related Proceeding in connection with the Transaction, (iii) any
`outside copying service or other outside vendor retained by any Party or its client that
`is
`necessary to assist in the joint defense effort and any reiated Proceeding in connection with the
`'l't'ansaction, (iv) except as provided in Paragraplts 4 and 5, each Party's respective client; and {v}
`subject
`to l’aragraph 7, as required by law.
`It
`is expressly understood that Joint Defense
`Information shall not be further disclosed to any other person, unless attlltorized orally or in
`writing by the Party who provided such information to the other Parties and their client (hereafler.
`the “Producing Part)/1’) lir its client.
`
`Nothing in this Agreement shall preclude any Producing Party or its client
`4.
`from designating material “Outside-t‘?ounscl Only“ or “Attorneys Only.” The term "Outside
`Counsel" shall refer to any law firm that is or may become a signatory to this Agreement. Joint
`Defense Information provided on an “Outside-Counsel Only“ basis may be exclntnged among
`outside counsel, attorneys within the outside counsei‘s law firm. and employees or agents of such
`firm, and may be provided to any experts (and including any employees or agents of their firms)
`retained in connection with the Transaction, but shall not be divulged to any other person without
`the advance consent of the Producing Party or its client. All Joint Defense Information that a
`Producing Party intends to be provided on an “Outside-Counsel Only" basis shall be clearly
`merited, designated, or otherwise described as “Outside-Counsel Only." The term "Attorneys
`Only” shall include Outside Counsel and in-house lawyers for the clients who s-hail not share such
`information with anyone else (including anyone else within their Cornpany] without the advance
`consent ofthc Producing Party or its client.
`
`Nothing in this Agtccment shall preclude any Producing Party or its client
`5.
`from designating any Joint Defense information “Clean Team Only," in which case such material
`shall be subject to the requirements of the Clean Team Confidentiality Agreement between ARRIS
`Group Inc. and Pace plc, dated April 13, 2015 (as amended trcrn time to time) and any subsequent
`Clean Team Agreement between ARRJS Group Inc. and Pace plc (the “Ciea.n Team Agreement")
`and shall only be provided to the “Clean Team Members" listed on Annex B of the Clean Team
`Agreement, as such Annex may be updated horn time to time, and the Clean Team Members for
`the client of the Party who receives such materials from the Producing Party (the “Receiving
`Party“) shall not disclose the content of such materials to anyone who is not a Clean Team Member
`2
`\\DC » 040'J9l/Ol)tW)0li - 054594! vi
`
`Page 2 of12
`
`Page 2 of 12
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`

`
`unless such disclosure is made to a government agency in connection with obtaining regulatory
`clearance related to the Transaction. To the extent
`there is a conflict
`in relation to material
`designated as “Clean Team Only“ between the provisions of this Agreement and the Clean Team
`Agreement, the provisions of the Clean Team Agreement shall prevail.
`
`Joint Defense Intorniation will he used by rt Receiving Party or its client only
`6.
`for purposes or‘ the joint defense el'1'ort and any related Proceeding in connection with the
`Transaction. as identified above, and shall not be used For any other purpose without the prior written
`consent of the Producing Party or its client.
`
`If any person or entity requests or demands tiorn a Receiving Party or its
`7.
`client by subpoena, court order or otherwise access to Joint Defense lnfonnntion that the Receiving
`Party obtained from a Producing Party or its client,
`the Party or client receiving the demand,
`subpoena or order shall promptly notify the Producing Party. Each Party agrees that, except as
`required by law, the Producing Party or its client shall have the opportunity promptly, and in any
`event no more than ten days after receiving notice of the subpoena or order, to assert any rights or
`privileges against the request to obtain the material, and that the Producing Party or its client and the
`Parties or client who received the request shall take all steps necessary and appropriate to assist in the
`assertion oi‘ applicable rights and privileges with regard to said Joint Defense lnihrrnation in the
`appropriate forum. The Producing Party's client shall hear the legal costs. including attorneys‘ fees,
`in asserting such rights and privileges,
`If the return date on the subpoena or order is less than ten
`days, the Producing Party and its client shall have as much time as is reasonably necessary prior to
`the return date to assert any applicable rights or privileges.
`
`The existence of this Agreement or ofajoint defense cll’oi1 in connection
`8.
`with the Transaction shall not be used in any fashion against the Parties to this Agreement or their
`clients other than as set forth in this Agreement. By way ofcxaniple and not limitation, it shall
`not be used offensively or defensively in any litigation between the clients of the Parties to this
`Agreement (other than as covered by this Agreement) involving nny issue relating to or deriving
`from the Transaction. No Party to this Agreement or its client will claim that any counsel is
`disqualified in such litigation or any other matter by reason of the joint defense et"t'ort or that this
`Agreement creates any attorney-client relationship that did not exist prior to its execution.
`
`At any time, any Producing Party or it client may request of any Receiving
`9.
`Party that it and its client return to the Producing Party or destroy any Joint Defense Information
`provided to the Receiving Party or its client pursuant to this Agreement. Upon request of the
`Producing Party, a Receiving Party and its client will rcdact (i.e., permanently delete) from any
`retained work product all statements and disclosures of Joint Defense Information provided by the
`Producing |‘arty. The Parties agree that a failure to return, destroy, or redact such materials upon
`request provides adequate grounds for the Producing Party or its client to seek at court order directing
`return, destruction, or redaction oi‘ the materials.
`ll'a Receiving Party or its client is unable to ensure
`the destruction or redaction of‘ any Joint Defense lnformation, it will take reasonable measures to
`make such Joint Defense Information permanently inaccessible. Any such destruction or redaction
`shall, upon the request of the Producing Party, be certified in writing to the Producing Party by an
`authorized person supervising the same. Even alter the conclusion of thejoint defense effort, Joint
`Defense information will be treated as confidential. The Parties acknowledge that they and others
`pcmtilted access to Joint Dci’ense lnfonnation pursuant to this Agreement may maintain archived or
`3
`
`“DC - l]407'7|l00DOUl - (I5-15'?-ll! vi
`
`Page 3 of12
`
`Page 3 of 12
`
`

`
`back-up tapes and other media not accesserl in the ordinary course of husiness but used only to
`restore inadvertently destroyed or Otherwise lost data (“Back-up Systems“) that may include such
`Joint l)el"ensc 1nl‘ormation. Notwithstanding the liiregoing. the Parties acknowledge that it would be
`burdensome to remove infhnnzttioii
`from such Back-up Systems or to render the information
`pcnnaneiitly inaccessible. The Parties shall not be required to engage in such steps but agree that
`they shall take no steps to retrieve such infonnation from Back-up Systems in the absence of any
`need to use those Back-up Systems more generally to restore destroyed or lost data. Such Back-
`up Systems will be erased or destroyed in accordance with the Parties‘ normal course document
`preservation and destruction policies. Further, in the event such Back-up Systems are used to
`restore data destroyed or lost for other reasons, any Joint Defense Information will be removed
`from such restored systems and destroyed or rendered permanently inaccessible.
`
`Nothing in this Agreement shall obligate any Party or its client to
`I0.
`provide any information to any other Party or its client or exchange any information with any
`other Party or its client.
`
`Nothing in this Agreement shall restrict any Party or its client from using
`I I.
`or disclosing in any manner
`it chooses materials, whether criiitidcntinl or otherwise.
`originating with that Party or its client so long as such materials do not contain or disclose
`Joint Defense Information that was received from another Party or its client.
`
`Any Party may, on behalf‘ of‘ itself and/or its respective client, withdraw
`I2.
`ll'(‘.Il'lI the Agreement upon written notification to the other l~‘arties. All Parties agree that in the
`event any Party withdraws, such Party and.
`if its client has nlso withdrawn,
`its client will
`immediately return or destroy (subject to Paragraph 9) all Joint Defense lnformsnion provided by
`any of‘ the other i'at’ties or their client and any such destruction shall. upon the request of the
`Prodttciiig Forty, be certified in writing to the Producing Party by an authori?.etl person supervising
`the same. The Parties agree that a failure to return or destroy such materials provides arteqttatc
`grouncls tor the other Parties or their client to seek a court order directing return or destruction of
`the materials. Notwithstanding any withdrawal, each Party and its client remain subject to the
`provisions of Paragraphs 2-9 and 13 of this Agreement.
`
`Each Party, on behalf of itself and its client, acknowledges and agrees
`I3.
`that money damages would not be a sufficient remedy for any breach oi‘ any provision oi‘ this
`Agreement by any Party or its client, and that in addition to such remedies which any non-
`breaching Party or its clients may have, such non—breaching Parties and their clients shall be
`entitled to specific perlormance and injunctive or other equitable relief as a remedy for such
`breach.
`
`14.
`
`Any modifications to this Agreement must be in writing and signed by
`
`all Parties.
`
`This Agreement may be executed in counterparts, each of which shall be
`IS.
`deemed an original, but all of which together shall constitute one and the same instrument.
`
`Each Party represents that it has been authorized by its client to enter
`I6.
`into this Agreement and that its client has agreed to be bound by this Agreement.
`4
`
`‘\\D(I - 040'l9|-'000D0lt v b5'l.$‘)4ll \l
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`Page 4 of12
`
`Page 4 of 12
`
`

`
`Counsel for A
`
`Group. In
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`Counsel for Pace pic
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`By
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`Hagan LB -.-u‘afIs LLP
`
`Date‘
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`Page 5 of12
`
`Page 5 of 12
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`

`
`Counsel for ARRJS Group, Inc.
`
`Counsel for Pace plc
`
`By:
`
`Hogan Lovells US LLP
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`By-
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`Paul Weiss Rifklnd Wharton &
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`Brlgatd & Urrutia
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`Date:
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`Travers Smith LLP
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`Date:
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`By: ,_,,____,___,______.____..._._.
`Philippi Prietucarrizosa & Uria
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`Page 6 of12
`
`Page 6 of 12
`
`

`
`Counsel for ARRIS Group, Inc.
`
`Counsel fbrihce plc
`
`By:
`
`Hogan Lovells US LLP
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`By: .._.___.____.__.___._._.._
`Paul Weiss Rifklnd Wharton EL
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`Date: ,____ZH______~______
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`Page 7 of12
`
`Page 7 of 12
`
`

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`Counsel for ARRIS Group, Inc.
`
`Counsel for Pace plc
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`Hogan Lovells US LLP
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`Page 8 of12
`
`Page 8 of 12
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`

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`Counsel for ARRIS Group, Inc.
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`Counsel for Pace plc
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`Page 9 of12
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`Page 9 of 12
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`~
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`Page10of12
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`Counsel for ARRIS Group, In .
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`Counsel for Pace plc
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`By:
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`Hogan Lovclls US LLP
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`Page 10 of 12
`
`

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`Counsel for ARRIS Group, Inc.
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`Counsel for Pace plo
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`Page11of12
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`Page 11 of 12
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`

`
`Counsel for ARRIS Group, Inc.
`
`Counsel for Pace plo
`
`By= ________fi_.______
`l-Iogan Lovells US LLP
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`By: __,___,___,_________
`Paul Weiss Rllklnd Wharton 8:
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`Date:
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`Date.
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`Glolss Lutz
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`Date:
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`
`
`
`
`Page12of12
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`Page 12 of 12