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Common Interest Agreement

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What is a Common Interest Agreement?

A common interest agreement is an agreement entered into by attorneys and their clients to allow for sharing of information and strategies without violating confidentiality requirements. This document allows the attorneys to coordinate and work together when they represent clients with similar legal interests.

A common interest agreement will include:

  • Information to be shared
  • Permission of the clients involved
  • Attorneys authorized to receive information

This type of document may also stipulate the benefits to the clients from this type of agreement, such as mitigation of costs. It is important that this document be entered into carefully, however, as it could be considered a breach of attorney-client privilege/confidentiality.

Common Interest Agreement Sample

Exhibit 10.23

PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

JOINT DEFENSE AND COMMON INTEREST AGREEMENT

THIS JOINT DEFENSE AND COMMON INTEREST AGREEMENT (“Agreement”) is entered into between and among the undersigned legal counsel, on behalf of themselves as counsel, their respective law firms, associated employees and consultants, and their respective clients in this matter (specifically, AMC Entertainment, Inc., Regal Entertainment Group and Cinemark, Inc.). Each client is referred to herein as a “Party,” and the clients are referred to collectively as “the Parties.”

WHEREAS AMC Entertainment, Inc. and Regal Entertainment Group have entered into a new joint venture in the field of advertising and promotion; and

WHEREAS the Parties are discussing the possibility of Cinemark, Inc. participating in the ownership of the joint venture (hereinafter “the Transaction”); and

WHEREAS the Transaction may become the subject of a filing for competition- related approval or clearance, a governmental inquiry, investigation, administrative or regulatory proceedings, or litigation in the United States of America or elsewhere (collectively “Proceedings”); and

WHEREAS the Parties recognize that they have a common interest in assuring that their legal rights in discussing, negotiating and effecting the Transaction are fully protected in the event of any Proceedings; and


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

WHEREAS the Parties recognize that it is likely to be in their best interest, in defending or asserting their respective legal rights in any Proceedings, to share a variety of information and resources related to the Transaction, without waiving or otherwise risking loss of the protection of the attorney-client privilege, the work-product doctrine, or other applicable privileges, nondisclosure agreements, or legal protections (collectively “Privileges”);

NOW THEREFORE the Parties hereby memorialize in writing this Agreement for their joint defense and common interest, as follows:

1. The Parties acknowledge that they have certain common interests in advocating or defending their interests regarding the Transaction in any Proceedings. The Parties also acknowledge that it may be in their best interests in the sole discretion of each Party: (a) to exchange and jointly develop information, legal theories, and other material related to the Transaction otherwise protected by all or any of the Privileges (“Joint Defense Information”); and (b) to pool their respective work product in a joint and common defense. To the extent the Parties choose to share or jointly develop Joint Defense Information, the terms of this Agreement apply. Nothing herein shall be construed to require one Party to share privileged information or communications with another Party; nor shall this Agreement be construed to alter any of the rights or obligations set forth in any confidentiality, non-disclosure or other agreement already entered into by the Parties in connection with this Transaction.

2. Each Party agrees that all Joint Defense Information exchanged or jointly developed pursuant to this Agreement is communicated in confidence for the purposes of

 

2


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

securing or communicating legal advice and representation and shall not be used for any other purpose, and is therefore subject to:

(a) any and all of the Privileges belonging to the party conveying or jointly developing the information, which Privileges may not be waived without the prior written consent of such Party, which consent will not be unreasonably withheld when requested by the other Party; and (b) the terms of this Agreement. Any inadvertent or purposeful disclosure by any Party of information exchanged pursuant to this Agreement shall not constitute a waiver of any Privilege of any other Party.

3. To ensure the confidentiality of Joint Defense Information and to preserve any and all of the Privileges belonging to each Party, each Party agrees not to, without the written consent of the other Party from which Joint Defense Information was received or which jointly participated in the development of that Joint Defense Information, give, show, make available, or communicate in anyway any such Joint Defense Information to anyone other than: (a) the signatories to this Agreement, (b) in the case of external counsel, the partners, associates, counsel, staff and other employees of the respective law firms that are working on the Transaction and/or any Proceedings, (c) in the case of internal counsel, the lawyers and legal department support staff that are working on the Transaction and/or any Proceedings, and (d) independent consultants or experts retained by the Parties in connection with the Proceedings; provided, however, that any such attorney, consultant, or expert must agree to abide by the confidentiality and other provisions of this Agreement prior to receiving any Joint Defense Information. To ensure that any attorney, consultant, or expert whom a party may retain in connection with the

 

3


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

Transaction agrees to abide by the confidentiality provisions of this Agreement before receiving any Joint Defense Information, each Party shall provide a copy of this Agreement to any such attorney, consultant, or expert together with a document stating that one of the terms of the engagement of the attorney, consultant, or expert is that such person agrees to be bound by the confidentiality provisions of this Agreement. Joint Defense Information shall not be further disclosed to any other person unless authorized in writing by the party or Parties that originated the Joint Defense Information. Regardless of whatever Joint Defense Information is created and/

or shared, and unless the Parties subsequently agree otherwise in writing, each Party is responsible, at its sole cost and expense, for all advice and counsel provided by its own attorneys, consultants, and experts.

4. Each Party or its counsel may designate certain very competitively sensitive or otherwise highly confidential proprietary Joint Defense Information as “Highly Confidential.” All “Highly Confidential” Joint Defense Information shall be shared with and solely for the use of the Parties’ external counsel only. External counsel shall not share any “Highly Confidential” Joint Defense Information with the Party that is their client, except with the prior written consent of the providing Party or the providing Party’s counsel.

5. If any government entity or other person requests or demands, by subpoena or otherwise, that a Party produce Joint Defense Information received from the other Party or jointly developed by the Parties, the Party to which the request or demand is addressed shall assert at its sale cost or expense all applicable Privileges, and shall

 

4


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

immediately upon receiving the request or demand notify the other party about the request or demand and indicate the Joint Defense Information covered by the government request or demand so as to afford such Party the opportunity to intervene in any Proceeding to assert any applicable Privilege on its own behalf and at its own cost or expense. In the event that disclosure is ordered notwithstanding the assertion of any applicable Privilege, the Parties shall cooperate in seeking an appropriate protective order to limit the extent and nature of disclosure.

6. Each Party agrees that the sharing of Joint Defense Information between the parties pursuant to this Agreement does not waive (a) any Privilege, or (b) the confidentiality of such Joint Defense Information which has been designated confidential pursuant to a Protective Order or which is otherwise confidential, and further agrees that no Party may claim such a waiver.

7. The sharing of Joint Defense Information pursuant to this Agreement shall not prevent a Party from asserting any claim, at law or in equity, against any other Party in any proceeding. If there is any proceeding between the Parties in the future (including a proceeding involving additional parties not involved in this Joint Defense Agreement), no Party may use against another Party in that proceeding Joint Defense Information received from that Party or jointly developed by the Parties. Furthermore, no oral or written statements made by one Party to another Party and covered by this Agreement shall be deemed an admission in that proceeding. The Parties further agree to enter into a stipulated protective order in any subsequent proceeding between or among them that shall protect all Joint Defense Information from disclosure to third parties.

 

5


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

8. The Parties agree that no adequate remedy is available at law for a breach of this Agreement and that, in addition to any other remedies available, performance of this Agreement may be specifically ordered, a breach hereof may be enjoined, or both.

9. In the event that any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, that provision shall have no force or effect, but its illegality or unenforceability shall neither affect nor impair the enforceability of any other provision of this Agreement.

10. This Agreement may not be amended, except by an instrument in writing signed by all Parties.

11. This Agreement may be signed in separate counterparts, each of which shall be binding on the Parties who, through their counsel, are signatory to any counterpart.

12. This Agreement applies to all exchanges of Joint Defense Information between the Parties before execution of this Agreement and is intended as the written embodiment of the Parties’ prior oral joint defense agreement. This Agreement is meant to reaffirm and supplement the prior Joint Defense and Common Interest Agreement entered into by the parties and their counsel dated August 16,2004, and applies to any exchanges of Joint Defense Information under that prior agreement.

13. Subject to the Parties’ respective rights and obligations under any nondisclosure, confidentiality or other agreement made in connection with this Transaction. any Party is free to withdraw from (and in that limited sense thereby terminate) this Joint Defense Agreement upon written notice to the other Party or its

 

6


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

counsel. Upon notice of withdrawal, each Party shall promptly return all documents in the nature of Joint Defense Information received from the other Party pursuant to this Agreement and shall continue to protect from disclosure to any third party all oral and written Joint Defense Information previously disclosed to it by the other Party or jointly developed by the Parties. Each party shall continue to be bound by this Agreement with regard to the required confidential treatment of any Joint Defense Information received by it or its counsel from the other Party or that Party’s counselor jointly developed by the Parties or the parties’ counsel prior to the withdrawal.

14. Upon the completion of all Proceedings or the termination of all discussion between the parties with respect to the Transaction, each Party shall promptly return all documents in the nature of Joint Defense Information received from the other Party pursuant to this Agreement and shall continue to protect from disclosure to any third party all oral and written Joint Defense Information previously disclosed to it by the other Party or jointly developed by the Parties. Each Party shall continue to be bound by this Agreement with regard to the required confidential treatment of any Joint Defense Information received by it or its counsel from the other Party or that Party’s counselor jointly developed by the Parties or the Parties’ counsel prior to the withdrawal.

15. This Agreement shall terminate upon the completion of all Proceedings, or upon cessation of discussions between the Parties.

16. This Agreement shall be construed and interpreted, and the rights of the Parties shall be determined. in accordance with the substantive laws of the State of New York for contracts expected and likely to be performed solely within such State without regard to the conflict of laws principles thereof or of any other jurisdiction.

 

7


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

17. Nothing contained herein or done pursuant to this Agreement shall be deemed to create an attorney-client relationship between one Party’s counsel and the other Party. The fact that a Party’s counsel has executed this Agreement and from time to time received Joint Defense Information from the other party or its counsel pursuant to this Agreement shall not in any way preclude (or be used as a basis for seeking disqualification preventing) the first Party’s counsel and those working with such counsel from fully representing any interest of that Party, including representation that may be construed as being adverse to the other Party (such as but not limited to examining or cross-examining any officer or employee of such other Party in any proceeding). The undersigned counsel for each Party represent that they have specifically advised their respective client of this paragraph in the Agreement.

 

Dated: March 3, 2005   By:  

/s/ Joseph G. Krauss

    Joseph G. Krauss
    HOGAN & HARTSON
    Attorneys for Regal Entertainment Group
Dated: March 3, 2005   By:  

/s/ Abbott B. Lipsky, Jr.

  Name:   Abbott B. Lipsky, Jr.
    LATHAM & WATKINS
    Attorneys for AMC Entertainment, Inc.

 

8


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

JOINT DEFENSE AND COMMON INTEREST AGREEMENT

THIS JOINT DEFENSE AND COMMON INTEREST AGREEMENT (“Agreement”) is entered into between and among the undersigned legal counsel, on behalf of themselves as counsel, their respective law firms, associated employees and consultants, and their respective clients in this matter (specifically, AMC Entertainment, Inc. and Regal Entertainment Group). Each client is referred to herein as a “Party,” and the clients are referred to collectively as “the Parties.”

WHEREAS the Parties are discussing the possibility of entering into a new joint venture in the field of advertising and promotion (hereinafter “the Transaction”); and WHEREAS the Transaction may become the subject of a filing for competition- related approval or clearance, a governmental inquiry, investigation, administrative or regulatory proceedings, or litigation in the United States of America or elsewhere (collectively “Proceedings”); and

WHEREAS the Parties recognize that they have a common interest in assuring that their legal rights in discussing, negotiating and effecting the Transaction are fully protected in the event of any Proceedings; and

WHEREAS the Parties recognize that it is likely to be in their best interest, in defending or asserting their respective legal rights in any Proceedings, to share a variety of information and resources related to the Transaction, without waiving or otherwise risking loss of the protection of the attorney-client privilege, the work-product doctrine, or other applicable privileges, nondisclosure agreements, or legal protections (collectively “Privileges”);


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

NOW THEREFORE the Parties hereby memorialize in writing this Agreement for their joint defense and common interest, as follows:

1. The Parties acknowledge that they have certain common interests in advocating or defending their interests regarding the Transaction in any Proceedings. The Parties also acknowledge that it may be in their best interests in the sole discretion of each Party: (a) to exchange and jointly develop information, legal theories, and other material related to the Transaction otherwise protected by all or any of the Privileges (“Joint Defense Information”); and (b) to pool their respective work product in a joint and common defense. To the extent the Parties choose to share or jointly develop Joint Defense Information, the terms of this Agreement apply. Nothing herein shall be construed to require one Party to share privileged information or communications with another Party; nor shall this Agreement be construed to alter any of the rights or obligations set forth in any confidentiality, non-disclosure or other agreement already entered into by the Parties in connection with this Transaction.

2. Each Party agrees that all Joint Defense Information exchanged or jointly developed pursuant to this Agreement is communicated in confidence for the purposes of securing or communicating legal advice and representation and shall not be used for any other purpose, and is therefore subject to: (a) any and all of the Privileges belonging to the Party conveying or jointly developing the information, which Privileges may not be waived without the prior written consent of such Party, which consent will not be

 

2


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

unreasonably withheld when requested by the other Party; and (b) the terms of this Agreement. Any inadvertent or purposeful disclosure by any Party of information exchanged pursuant to this Agreement shall not constitute a waiver of any Privilege of any other Party.

3. To ensure the confidentiality of Joint Defense Information and to preserve any and all of the Privileges belonging to each Party, each Party agrees not to, without the written consent of the other Party from which Joint Defense Information was received or which jointly participated in the development of that Joint Defense Information, give, show, make available, or communicate in any way any such Joint Defense Information to anyone other than: (a) the signatories to this Agreement, (b) in the case of external counsel, the partners, associates, counsel, staff and other employees of the respective law firms that are working on the Transaction and/or any Proceedings, (c) in the case of internal counsel, the lawyers and legal department support staff that are working on the Transaction and/or any Proceedings, and (d) independent consultants or experts retained by the Parties in connection with the Proceedings; provided, however, that any such attorney, consultant, or expert must agree to abide by the confidentiality and other provisions of this Agreement prior to receiving any Joint Defense Information. To ensure that any attorney, consultant, or expert whom a Party may retain in connection with the Transaction agrees to abide by the confidentiality provisions of this Agreement before receiving any Joint Defense Information, each Party shall provide a copy of this Agreement to any such attorney, consultant, or expert together with a document stating that one of the terms of the engagement of the attorney, consultant, or expert is that such

 

3


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

person agrees to be bound by the confidentiality provisions of this Agreement. Joint Defense Information shall not be further disclosed to any other person unless authorized in writing by the Party or Parties that originated the Joint Defense Information. Regardless of whatever Joint Defense Information is created and/or shared, and unless the Parties subsequently agree otherwise in writing, each Party is responsible, at its sole cost and expense, for all advice and counsel provided by its own attorneys, consultants, and experts.

4. Each Party or its counsel may designate certain very competitively sensitive or otherwise highly confidential proprietary Joint Defense Information as “Highly Confidential.” All “Highly Confidential” Joint Defense Information shall be shared with and solely for the use of the Parties’ external counsel only. External counsel shall not share any “Highly Confidential” Joint Defense Information with the Party that is their client, except with the prior written consent of the providing Party or the providing Party’s counsel.

5. If any government entity or other person requests or demands, by subpoena or otherwise, that a Party produce Joint Defense Information received from the other Party or jointly developed by the Parties, the Party to which the request or demand is addressed shall assert at its sole cost or expense all applicable Privileges, and shall immediately upon receiving the request or demand notify the other Party about the request or demand and indicate the Joint Defense Information covered by the government request or demand so as to afford such Party the opportunity to intervene in any Proceeding to assert any applicable Privilege on its own behalf and at its own cost or

 

4


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

expense. In the event that disclosure is ordered notwithstanding the assertion of any applicable Privilege, the Parties shall cooperate in seeking an appropriate protective order to limit the extent and nature of disclosure.

6. Each Party agrees that the sharing of Joint Defense Information between the parties pursuant to this Agreement does not waive (a) any Privilege, or (b) the confidentiality of such Joint Defense Information which has been designated confidential pursuant to a Protective Order or which is otherwise confidential, and further agrees that no Party may claim such a waiver.

7. The sharing of Joint Defense Information pursuant to this Agreement shall not prevent a Party from asserting any claim, at law or in equity, against any other Party in any proceeding. If there is any proceeding between the Parties in the future (including a proceeding involving additional parties not involved in this Joint Defense Agreement), no Party may use against another Party in that proceeding Joint Defense Information received from that Party or jointly developed by the Parties. Furthermore, no oral or written statements made by one Party to another Party and covered by this Agreement shall be deemed an admission in that proceeding. The Parties further agree to enter into a stipulated protective order in any subsequent proceeding between or among them that shall protect all Joint Defense Information from disclosure to third parties.

8. The Parties agree that no adequate remedy is available at law for a breach of this Agreement and that, in addition to any other remedies available, performance of this Agreement may be specifically ordered, a breach hereof may be enjoined, or both.

 

5


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

9. In the event that any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, that provision shall have no force or effect, but its illegality or unenforceability shall neither affect nor impair the enforceability of any other provision of this Agreement.

10. This Agreement may not be amended, except by an instrument in writing signed by all Parties.

11. This Agreement may be signed in separate counterparts, each of which shall be binding on the Parties who, through their counsel, are signatory to any counterpart.

12. This Agreement applies to all exchanges of Joint Defense Information between the Parties before execution of this Agreement and is intended as the Written embodiment of the parties’ prior oral joint defense agreement. This Agreement is meant to reaffirm and supplement the prior Joint Defense and Common Interest Agreement entered into by the parties and their counsel dated August 16, 2004, and applies to any exchanges of Joint Defense Information under that prior agreement.

13. Subject to the parties’ respective rights and obligations under any nondisclosure, confidentiality or other agreement made in connection with this Transaction, any Party is free to withdraw from (and in that limited sense thereby terminate) this Joint Defense Agreement upon written notice to the other Party or its counsel. Upon notice of withdrawal, each Party shall promptly return all documents in the nature of Joint Defense Information received from the other Party pursuant to this Agreement and shall continue to protect from disclosure to any third party all oral and

 

6


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

written Joint Defense Information previously disclosed to it by the other Party or jointly developed by the Parties. Each Party shall continue to be bound by this Agreement with regard to the required confidential treatment of any Joint Defense Information received by it or its counsel from the other Party or that Party’s counselor jointly developed by the Parties or the Parties’ counsel prior to the withdrawal.

14. Upon the completion of all Proceedings or the termination of all discussion between the Parties with respect to the Transaction, each Party shall promptly return all documents in the nature of Joint Defense Information received from the other Party pursuant to this Agreement and shall continue to protect from disclosure to any third party all oral and written Joint Defense Information previously disclosed to it by the other Party or jointly developed by the Parties. Each Party shall continue to be bound by this Agreement with regard to the required confidential treatment of any Joint Defense Information received by it or its counsel from the other Party or that Party’s counselor jointly developed by the Parties or the Parties’ counsel prior to the withdrawal.

15. This Agreement shall terminate upon the completion of all Proceedings, or upon cessation of discussions between the Parties.

16. This Agreement shall be construed and interpreted, and the rights of the Parties shall be determined, in accordance with the substantive laws of the State of New York for contracts expected and likely to be performed solely within such State without regard to the conflict of laws principles thereof or of any other jurisdiction.

17. Nothing contained herein or done pursuant to this Agreement shall be deemed to create an attorney-client relationship between one Party’s counsel and the other

 

7


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

Party. The fact that a Party’s counsel has executed this Agreement and from time to time received Joint Defense Information from the other Party or its counsel pursuant to this Agreement shall not in any way preclude (or be used as a basis for seeking disqualification preventing) the first Party’s counsel and those working with such counsel from fully representing any interest of that Party, including representation that may be construed as being adverse to the other Party (such as but not limited to examining or cross-examining any officer or employee of such other Party in any proceeding). The undersigned counsel for each Party represent that they have specifically advised their respective client of this paragraph in the Agreement.

 

Dated: July 13, 2005   By:  

/s/ Joseph G. Krauss

    Joseph G. Krauss
    HOGAN & HARTSON
    Attorneys for Regal Entertainment Group
Dated: July 13, 2005   By:  

/s/ Abbott B. Lipsky, Jr.

  Name:   Abbott B. Lipsky, Jr.
    LATHAM & WATKINS
    Attorneys for AMC Entertainment, Inc.
Dated: July 13, 2005   By:  

/s/ Paul B. Hewitt

  Name:   Paul B. Hewitt
    AKIN GUMP STRAUSS HAUER & FELD
    Attorneys for Cinemark, Inc.

 

8


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

AMENDMENT TO JOINT DEFENSE AND COMMON INTEREST AGREEMENT

THIS AMENDMENT TO JOINT DEFENSE AND COMMON INTEREST AGREEMENT (this “Amendment”) is entered into, effective as of this 1st day of July, 2006, between and among the undersigned legal counsel, on behalf of themselves as counsel, their respective law firms, associated employees and consultants, and their respective clients in this matter (specifically, AMC Entertainment, Inc. (“AMC”), Regal Entertainment Group (“Regal”), Cinemark, Inc. (“Cinemark”) and National CineMedia, LLC (“NCM”)). Each client is referred to herein as a “Party,” and the clients are referred to collectively as the “Parties.” All capitalized terms used herein that are not otherwise defined shall have the meaning given such term in the JDA (as defined below).

WHEREAS, AMC, Cinemark, and Regal, through wholly-owned subsidiaries, have entered into a joint venture in the field of advertising and promotion through the formation of NCM; and

WHEREAS, in connection with the formation of NCM, AMC and Regal, among others, entered into that certain Joint Defense and Common Interest Agreement, dated August 16, 2004 (the “Original JDA”), which Original JDA was supplemented by that certain Joint Defense and Common Interest Agreement, dated July 13, 2005, by and among counsel for AMC, Regal and Cinemark (the “Amended JDA” and together with the Original JDA, the “JDA”);


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

WHEREAS, the Parties are discussing the possibility of restructuring and recapitalizing NCM in connection with the issuance of debt and the initial public offering of NCM and related transactions related thereto (the “Transaction”) and in connection therewith desire to add NCM as a Party to the JDA and to amend the defined term “Transaction” in the JDA to include those transactions included in the above defined term “Transaction”; and

WHEREAS the Parties recognize that they have a common interest in assuring that their legal rights in discussing, negotiating and effecting the Transaction are fully protected in the event of any Proceedings; and

WHEREAS the Parties recognize that it is likely to be in their best interest, in defending or asserting their respective legal rights in any Proceedings, to share a variety of information and resources related to the Transaction, without waiving or otherwise risking loss of the protection of any Privileges;

NOW THEREFORE the Parties hereby memorialize in writing this Amendment for their joint defense and common interest, as follows:

1. The Parties desire to amend the JDA to specifically add NCM as a “Party” to the JDA whereby NCM shall be subject to all the terms, conditions and obligations of the JDA without limitation and NCM hereby agrees to be bound by, and subject to, the terms, conditions and obligations of the JDA without limitation.

2. The Parties desire to amend the define term “Transaction” in the JDA to include those transactions included in the defined term “Transaction” above.

 

2


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

3. In the event that any provision of this Amendment shall be held by any court of competent jurisdiction to be illegal, void, or unenforceable, that provision shall have no force or effect, but its illegality or unenforceability shall neither affect nor impair the enforceability of any other provision of this Amendment.

4. This Amendment may not be amended, except by an instrument in writing signed by all Parties.

5. This Amendment may be signed in separate counterparts, each of which shall be binding on the Parties who, through their counsel, are signatory to any counterpart.

6. This Amendment is meant to reaffirm and supplement the Original JDA and the Amended JDA, and except as expressly modified pursuant to the terms of this Amendment, the Original JDA and the Amended JDA shall not be modified and shall remain in full force and effect .

7. This Amendment shall be construed and interpreted, and the rights of the Parties shall be determined, in accordance with the substantive laws of the State of New York for contracts expected and likely to be performed solely within such State without regard to the conflict of laws principles thereof or of any other jurisdiction.

8. Nothing contained herein or done pursuant to this Amendment shall be deemed to create an attorney-client relationship between one Party’s counsel and the other Party. The fact that a Party’s counsel has executed this Amendment and from time to time received Joint Defense Information from the other Party or its counsel pursuant to the JDA or this Amendment shall not in any way preclude (or be used as a basis for

 

3


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

seeking disqualification preventing) the first Party’s counsel and those working with such counsel from fully representing any interest of that Party, including representation that may be construed as being adverse to the other Party (such as but not limited to examining or cross-examining any officer or employee of such other Party in any proceeding). The undersigned counsel for each Party represent that they have specifically advised their respective client of this paragraph in the Amendment.

[Signature page follows]

 

4


PRIVILEGED & CONFIDENTIAL

ATTORNEY WORK PRODUCT

SUBJECT TO JOINT DEFENSE AND COMMON INTEREST PRIVILEGE

 

Dated: January     , 2007   By:  

 

    Joseph G. Krauss
    HOGAN & HARTSON
    Attorneys for Regal Entertainment Group
Dated: January     , 2007   By:  

 

  Name:  

 

    LATHAM & WATKINS
    Attorneys for AMC Entertainment, Inc.
Dated: January     , 2007   By:  

 

  Name:  

 

    AKIN GUMP STRAUSS HAUER & FELD
    Attorneys for Cinemark, Inc.
Dated: January     , 2007   By:  

 

  Name:  

 

    HOLME ROBERTS & OWEN LLP
    Attorneys for National CineMedia, LLC
Dated: January     , 2007   By:  

 

  Name:  

 

    KIRKLAND & ELLIS
    Attorneys for Cinemark, Inc.

 

5


Reference:
Security Exchange Commission - Edgar Database, EX-10.23 20 dex1023.htm JOINT DEFENSE AND COMMON INTEREST AGREEMENT, Viewed October 12, 2021, View Source on SEC.

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Meet some of our Common Interest Agreement Lawyers

Travis D. on ContractsCounsel
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Member Since:
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Travis D.

Partner
Free Consultation
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4 Yrs Experience
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Travis counsels individuals and businesses on a broad range of complex topics. His practice centers on producing efficient, client-driven results. He concentrates his practice on real estate, construction, and general business matters with an emphasis on assisting clients both before and after problems occur by drafting contracts designed to best position clients to avoid disputes and litigating matters to a final resolution if problems emerge. Born and raised in Oklahoma, Travis is a triple graduate of the University of Oklahoma, having obtained his Bachelor of Arts, Master of Business Administration, and Juris Doctor degrees from OU. Prior to practicing law, Travis managed the finances and business operations of a successful construction supply company for several years. This insight into sophisticated business dealings, contractual issues, and strategic planning makes him uniquely qualified to handle a wide range of legal matters. Travis lives in Norman with his wife, Haley, dogs, Walter and Poppy, and cat, Ernest. Outside of the office, Travis enjoys playing golf and reading.

Justin C. on ContractsCounsel
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7 Yrs Experience
Licensed in IN
Valparaiso University Law School

Justin Camper is a small business and trademark attorney, entrepreneur, public speaker, and writer. Justin has been practicing law close to 5 years and has done various areas of law from criminal work as a Prosecutor, to business and civil litigation at private law firms.

Deborah W. on ContractsCounsel
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Member Since:
September 4, 2022

Deborah W.

Managing Partner
Free Consultation
Michigan
27 Yrs Experience
Licensed in MI
Michigan State University College of Law

Williamson Health Law is an established and trusted law firm focused on representing hospitals, health plans, physician groups, physicians, physical therapy businesses, psychologists and other health care providers and businesses in all aspects of health law. including the Stark law, the Anti-Kickback Statute (“AKS”), the Health Insurance Portability and Accountability Act (“HIPAA”), regulatory compliance, Medicare and Blue Cross audits and overpayment appeals, payer departicipation and disaffiliation appeals, payer and provider disputes, reimbursement and billing, compliance plans, health care industry contracts and professional licensure. We represent clients throughout Michigan and the U.S. with certain federal matters such as federal regulatory analysis and Medicare audits.

Bolaji O. on ContractsCounsel
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Member Since:
August 9, 2022

Bolaji O.

Princial Attorney
Free Consultation
New York
5 Yrs Experience
Licensed in NY
Texas Souther University - Thurgood Marshall School of Law

Bolaji O. Okunnu is an entertainment lawyer and founder of the Okunnu Law Group, PLLC based in New York, New York. His practice includes work in the area of copyright, trademark, contract, intellectual property and business law. As an entertainment attorney, Bolaji represents a diverse roster of celebrities, record labels, music publishers, artists, bands, entrepreneurs, authors, songwriters, artist managers, record producers and entertainment executives concerning their intellectual property, business affairs and creative assets. He is an expert at solving complex and sophisticated legal and business issues relating to contracts, copyrights and trademarks. With his background in both the law and the music business, he brings a broad perspective to problem-solving and business plan strategies. He also has an extraordinary ability to speak to the hearts of creatives while helping them discover their voice and clarify their creative dreams and assignments.

Matt M. on ContractsCounsel
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Member Since:
August 16, 2022

Matt M.

Attorney
Free Consultation
Orem, Utah
17 Yrs Experience
Licensed in UT
Washington & Lee University

I love to learn, and I love solving problems. That's why I became a lawyer, and learned to solve legal problems for individuals and businesses and help them fix things when there's a snag. Touch base if you think I could have something to offer for you or your company. Experienced, results-oriented legal professional whose background and education have established him as a valuable resource in areas of corporate law, franchising, litigation, compliance, mortgages and banking, and more. Practice Areas Include: Corporate law, Franchising, Litigation, real estate, corporate law, civil disputes, insurance representation, corporate counseling, dispute resolution, risk management, regulatory counsel, compliance. Experience involves sophisticated as well as routine corporate structuring and transactions, simple and complex litigation, and written and oral advocacy such as depositions, mediated settlement conferences, trials, appeals, written pleadings and discovery, and case strategy and analysis. Experience managing and litigating disputes between parties and negotiating settlements across the spectrum of civil litigation, including probative discovery, successful motions practice, legal research and writing, appellate practice, and legal consultation to individuals and business entities. Further experience includes digesting and monitoring updates to the legal landscape to advise clients or departments and successfully adapt policies and procedures to assure compliance with applicable laws and regulations as well as to manage risk effectively. For those needing a skilled commercial or corporate lawyer, or for individuals whose rights need persuasive advocacy, I am a valuable resource. Representative work also has involved success on the appellate level, as in Baker Construction Company, Inc. v. City of Burlington and Hawthorne, LLC, North Carolina COA09-13.

Madeline P. on ContractsCounsel
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Member Since:
August 14, 2022

Madeline P.

Attorney/CEO
Free Consultation
Frisco, Texas
8 Yrs Experience
Licensed in TX
Southern Methodist Uninversity - Dedman School of Law

I am the CEO and attorney at my law firm that I started in June 2020 (as other businesses were shuttering due to Covid-19). I am currently seeking contract work to supplement my case load as I recently finalized numerous family law cases within a short timeframe.

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