Common use of Certain Duties and Obligations of the Members Clause in Contracts

Certain Duties and Obligations of the Members. (a) Subject to the terms of this Agreement, the Members shall take all action which may be reasonably necessary or appropriate for the formation and continuation of the Company as a limited liability company under the laws of the State of Delaware. (b) No Member shall take any action so as to cause the Company to be classified for Federal income tax purposes as an association taxable as a corporation and not as a partnership. (c) The Company shall take all action which is necessary to form or qualify the Company and to conduct the business in which the Company is engaged under the laws of any jurisdiction in which the Company is doing business and to continue in effect such formation or qualification. (d) Except as otherwise permitted hereunder, no Member shall take, or cause to be taken, any action that would result in any Member having any personal liability for the obligations of the Company. Neither any Member nor any Affiliate of any Member shall enter into any transaction with the Company unless the transaction (i) is expressly permitted hereunder, (ii) with respect to services, the fees for such services must be no greater than the fees charged generally by qualified, unaffiliated third-parties performing similar services in the geographical area in which the services are to be performed and the other terms of the agreement pursuant to which such services will be performed shall generally be no more onerous to the Company than the terms of agreements used by qualified, unaffiliated third-parties performing similar services in the geographical area in which the particular services are to be rendered, (iii) with respect to purchases and sales of property, the price paid for such property must be no greater than the price that an unaffiliated third-party would pay for such property and the other terms of the agreement pursuant to which such property is purchased or sold shall generally be no more onerous to the Company than the terms of agreements used by unaffiliated third-parties purchasing or selling similar property in the geographical area in which such property is located or (iv) is approved by all the Managers upon disclosure of any direct or indirect interest such Member or any Affiliate thereof may have in the transaction. Each Member hereby agrees that it shall not recommend that the Company or any Subsidiary enter into, or otherwise permit the Company or any Subsidiary to enter into any, an agreement with any Person that is an Affiliate of such Member without first disclosing to the other Member in writing that such Person is an Affiliate of such Member. (i) Except as otherwise expressly provided in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated for any such debt, obligation or liability of the Company solely by reason of being a Member of the Company. Except as otherwise expressly provided in the Act or in this Agreement, the liability of 34 30 each Member shall be limited to the amount of Capital Contributions made (or required to be made) by such Member in accordance with the provisions of this Agreement. (ii) No Manager, Member and no partner, shareholder or member or other holder of an equity interest in any Member or any officer of director of any of the foregoing shall be liable, responsible or accountable to the Company or to any Member for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by it and arising out of or in connection with (A) any act performed within the scope of the authority conferred on it by this Agreement, (B) its failure or refusal to perform any act, (C) its performance of, or failure to perform, any act on the reasonable reliance on advice of legal counsel to the Company or (D) the negligence, dishonesty or bad faith of any agent, consultant or broker of the Company, except, in each case described in clauses (A) through (D), to the extent the action or failure to act of such party (but not of such legal counsel, agent, consultant or broker) constituted fraud, willful misconduct or gross negligence. No Manager, partner, shareholder, member or other holder of an equity interest in any Member or officer or director of any of the foregoing shall be personally liable for the performance of such Member's obligations under this Agreement, but the foregoing shall not relieve any partner or member of any Member from its obligations to such Member. (iii) The Company shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless each Member and each general or limited partner of any Member or such Member's Affiliates, shareholder, members or other holder of any equity interest in such Member or its Affiliate, or any officer or director of any of the foregoing and each and every Manager or Officer (collectively, the "Indemnitees"), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such Indemnitee may become subject in connection with any matter arising out of or incidental to this Agreement, including the formation hereof, the making of the Initial Capital Contributions and any matter for which such Indemnitee is exculpated under Section 4.5(e)(ii) or any other act performed or omitted to be performed by any such Indemnitee in connection with this Agreement or the Company's business or affairs; provided, however, that such act or omission was not attributable to such Indemnitee's fraud, willful misconduct or gross negligence or its breach of the representation set forth in Section 10.1. Any indemnity under this Section shall be paid solely out of and to the extent of Company Assets and shall not be a personal obligation of any Member and in no event will any Member be required, or permitted without the consent of all of the Members, to contribute additional capital to enable the Company to satisfy any obligation under this Section. The Company shall indemnify, defend and hold harmless each Member from and against any losses, claims, demands, liabilities, costs, damages, expenses with respect to any cause of action arising from the Merger Agreement and the transactions contemplated thereby to the extent such Member acted in its capacity as a Member of the Company. (iv) The Company, each Manager and the other Members shall be indemnified and held harmless by each Member from and against any and all claims, demands, 35 31 liabilities, costs, damages, expenses and causes of action of any nature whatsoever arising out of or attributable to the fraud, willful misconduct or gross negligence of such Member. (f) No Member shall be required to consider the interests of, or have any duty stated or implied by law or equity to (including any fiduciary duty), any other Member.

Certain Duties and Obligations of the Members. (a) Subject to the terms of this Agreement, the Members shall take all action which may be reasonably necessary or appropriate for the formation and continuation of the Company as a limited liability company under the laws of the State of Delaware. (b) No Member shall take any action so as to cause the Company to be classified for Federal income tax purposes as an association taxable as a corporation and not as a partnership. (c) The Company shall take all action which is necessary to form or qualify the Company and to conduct the business in which the Company is engaged under the laws of any jurisdiction in which the Company is doing business and to continue in effect such formation or qualification. (d) Except as otherwise permitted hereunder, no Member shall take, or cause to be taken, any action that would result in any Member having any personal liability for the obligations of the Company. Neither any Member nor any Affiliate of any Member shall enter into any transaction with the Company unless or its Subsidiaries unless: (a) the transaction (i) is expressly permitted hereunder, ; (iib) with respect to servicesservices to be provided by any Affiliate of any Member, the fees for such services must be are no greater than the fees charged generally by qualified, unaffiliated third-parties performing similar services in the geographical area in which the services are to be performed and the other terms of the agreement pursuant to which such services will be performed shall are generally be no more onerous to the Company or its Subsidiaries than the terms of agreements used by qualified, unaffiliated third-parties performing similar services in the geographical area in which the particular services are to be rendered, ; (iiic) with respect to purchases and sales of property, the price paid for such property must be is no greater than the price that an unaffiliated third-party would pay for such property and the other terms of the agreement pursuant to which such property is purchased or sold shall are generally be no more onerous to the Company or its Subsidiaries than the terms of agreements used by unaffiliated third-parties purchasing or selling similar property in the geographical area in which such property is located located; or (ivd) the transaction is approved by all the Managers Executive Committee upon disclosure of any direct or indirect interest such Member or any Affiliate thereof may have in the transaction. Any such agreement that is not approved by the Executive Committee shall be void as to the Company and its Subsidiaries; provided, however, the Executive Committee may ratify such agreement after it has been executed by the Company or a Subsidiary, upon which ratification such contract shall be binding as to the Company or the applicable Subsidiary as if such ratification occurred prior to the execution of the agreement. Each Member hereby agrees that it shall not recommend that the Company or any Subsidiary enter into, or otherwise permit the Company or any Subsidiary to enter into anyinto, an agreement with any Person that is an Affiliate of such Member without first disclosing to the other Member in writing that such Person is an Affiliate of such Member. (i) Except as otherwise expressly provided in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated for any such debt, obligation or liability of the Company solely by reason of being a Member of the Company. Except as otherwise expressly provided in the Act or in this Agreement, the liability of 34 30 each Member shall be limited to the amount of Capital Contributions made (or required to be made) by such Member in accordance with the provisions of this Agreement. (ii) No Manager, Member and no partner, shareholder or member or other holder of an equity interest in any Member or any officer of director of any of the foregoing shall be liable, responsible or accountable to the Company or to any Member for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by it and arising out of or in connection with (A) any act performed within the scope of the authority conferred on it by this Agreement, (B) its failure or refusal to perform any act, (C) its performance of, or failure to perform, any act on the reasonable reliance on advice of legal counsel to the Company or (D) the negligence, dishonesty or bad faith of any agent, consultant or broker of the Company, except, in each case described in clauses (A) through (D), to the extent the action or failure to act of such party (but not of such legal counsel, agent, consultant or broker) constituted fraud, willful misconduct or gross negligence. No Manager, partner, shareholder, member or other holder of an equity interest in any Member or officer or director of any of the foregoing shall be personally liable for the performance of such Member's obligations under this Agreement, but the foregoing shall not relieve any partner or member of any Member from its obligations to such Member. (iii) The Company shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless each Member and each general or limited partner of any Member or such Member's Affiliates, shareholder, members or other holder of any equity interest in such Member or its Affiliate, or any officer or director of any of the foregoing and each and every Manager or Officer (collectively, the "Indemnitees"), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such Indemnitee may become subject in connection with any matter arising out of or incidental to this Agreement, including the formation hereof, the making of the Initial Capital Contributions and any matter for which such Indemnitee is exculpated under Section 4.5(e)(ii) or any other act performed or omitted to be performed by any such Indemnitee in connection with this Agreement or the Company's business or affairs; provided, however, that such act or omission was not attributable to such Indemnitee's fraud, willful misconduct or gross negligence or its breach of the representation set forth in Section 10.1. Any indemnity under this Section shall be paid solely out of and to the extent of Company Assets and shall not be a personal obligation of any Member and in no event will any Member be required, or permitted without the consent of all of the Members, to contribute additional capital to enable the Company to satisfy any obligation under this Section. The Company shall indemnify, defend and hold harmless each Member from and against any losses, claims, demands, liabilities, costs, damages, expenses with respect to any cause of action arising from the Merger Agreement and the transactions contemplated thereby to the extent such Member acted in its capacity as a Member of the Company. (iv) The Company, each Manager and the other Members shall be indemnified and held harmless by each Member from and against any and all claims, demands, 35 31 liabilities, costs, damages, expenses and causes of action of any nature whatsoever arising out of or attributable to the fraud, willful misconduct or gross negligence of such Member. (f) No Member shall be required to consider the interests of, or have any duty stated or implied by law or equity to (including any fiduciary duty), any other Member.

Certain Duties and Obligations of the Members. (a) Subject to the terms of this Agreement, the Members Managing Member shall take all action actions which may be reasonably necessary or appropriate (i) for the formation and continuation of the Company as a limited liability company under the laws of the State of Delaware. Delaware and (bii) No for the development, maintenance, preservation and operation of the business of the Company in accordance with the provisions of this Agreement and applicable laws and regulations. Managing Member shall take any action so as to cause the Company to be classified for Federal income tax purposes as an association taxable as a corporation all actions which are reasonably necessary and not as a partnership. (c) The Company shall take all action which is necessary appropriate to form or qualify the Company and to conduct the business in which the Company is engaged under the laws of any jurisdiction in which the Company is doing business and to continue in effect such formation or qualification. (db) Except as otherwise permitted hereunder, no No Member shall take, or take any action so as to cause the Company to be takenclassified for U.S. federal income tax purposes as an association taxable as a corporation and not as a partnership. (c) The provisions of this Agreement, any action that would result in any Member having any personal liability for the obligations of the Company. Neither any Member nor any Affiliate of any Member shall enter into any transaction with the Company unless the transaction (i) is expressly permitted hereunder, (ii) with respect to services, the fees for such services must be no greater than the fees charged generally by qualified, unaffiliated third-parties performing similar services in the geographical area in which the services are to be performed and the other terms of the agreement pursuant to which such services will be performed shall generally be no more onerous to the Company than extent that they restrict or reduce the terms duties and/or liabilities of agreements used by qualifieda Member otherwise existing at law or in equity (including under the LLC Act), unaffiliated third-parties performing similar services in the geographical area in which the particular services are to be rendered, (iii) with respect to purchases shall replace such other duties and sales of property, the price paid for such property must be no greater than the price that an unaffiliated third-party would pay for such property and the other terms of the agreement pursuant to which such property is purchased or sold shall generally be no more onerous to the Company than the terms of agreements used by unaffiliated third-parties purchasing or selling similar property in the geographical area in which such property is located or (iv) is approved by all the Managers upon disclosure of any direct or indirect interest such Member or any Affiliate thereof may have in the transaction. Each Member hereby agrees that it shall not recommend that the Company or any Subsidiary enter into, or otherwise permit the Company or any Subsidiary to enter into any, an agreement with any Person that is an Affiliate of such Member without first disclosing to the other Member in writing that such Person is an Affiliate liabilities of such Member. (id) Except as otherwise expressly provided in the Act, the debts, obligations Common Member shall defend and liabilities of indemnify the Company, whether arising Preferred Member, Preferred Member’s Affiliates, and their respective shareholders, members, partners, directors, officers, managers, successors and assigns from and against, and shall hold it and them harmless from, any and all Liabilities, as and when incurred, in contractconnection with or resulting from Common Member’s (or its Affiliates’) gross negligence, tort malfeasance, fraud, theft, misappropriation, or willful misconduct. The indemnifications provided by this Section 3.5(d) shall be in addition to any other rights to which an indemnified party may be entitled under any other agreement, as a matter of law, or otherwise, shall be solely . (e) Notwithstanding anything to the debts, obligations and liabilities of the Company, and no Member shall be obligated for any such debt, obligation or liability of the Company solely by reason of being a Member of the Company. Except as otherwise expressly provided in the Act or contrary in this Agreement, the liability of 34 30 each Member shall be limited to the amount of Capital Contributions made (or required to be made) by such Member in accordance with the provisions of this Agreement. (ii) No Manager, Member and no partner, shareholder or member or other holder of an equity interest in any Member or any officer of director of any of the foregoing shall be liable, responsible or accountable to the Company or to any Member for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by it and arising out of or in connection with (A) any act performed within the scope of the authority conferred on it by this Agreement, (B) its failure or refusal to perform any act, (C) its performance of, or failure to perform, any act on the reasonable reliance on advice of legal counsel to the Company or (D) the negligence, dishonesty or bad faith of any agent, consultant or broker of the Company, except, in each case described in clauses (A) through (D), to the extent the action or failure to act of such party (but not of such legal counsel, agent, consultant or broker) constituted fraud, willful misconduct or gross negligence. No Manager, partner, shareholder, member or other holder of an equity interest in any Member or officer or director of any of the foregoing shall be personally liable for the performance of such Member's obligations under this Agreement, but the foregoing shall not relieve any partner or member of any Member from its obligations to such Member. (iii) The Company shall, to the fullest extent permitted by applicable law, indemnifyincluding Section 18-1101(c) and Section 18-1101(e) of the LLC Act, defend and hold harmless each notwithstanding any duty otherwise existing at law or in equity, none of Common Member, Managing Member and each general or limited partner of Preferred Member shall have any fiduciary duties to the Company, any Member or such Member's Affiliates, shareholder, members any other Person that is a party to or other holder of any equity interest in such Member or its Affiliate, or any officer or director of any of the foregoing and each and every Manager or Officer (collectively, the "Indemnitees"), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such Indemnitee may become subject in connection with any matter arising out of or incidental to is otherwise bound by this Agreement, including the formation hereofnor shall Common Member, the making of the Initial Capital Contributions and Managing Member or Preferred Member be liable for any matter for which such Indemnitee is exculpated under Section 4.5(e)(ii) or any other act performed or omitted to be performed by any such Indemnitee in connection with this Agreement or the Company's business or affairs; provided, however, that such act or omission was not attributable to such Indemnitee's fraud, willful misconduct or gross negligence or its breach of the representation set forth in Section 10.1. Any indemnity under this Section shall be paid solely out of and to the extent of Company Assets and shall not be a personal obligation of any Member and in no event will any Member be required, or permitted without the consent of all of the Members, to contribute additional capital to enable the Company to satisfy any obligation under this Section. The Company shall indemnify, defend and hold harmless each Member from and against any losses, claims, demands, liabilities, costs, damages, expenses with respect to any cause of action arising from the Merger Agreement and the transactions contemplated thereby to the extent such Member acted in its capacity as a Member of the Company. duties (iv) The Company, each Manager and the other Members shall be indemnified and held harmless by each Member from and against any and all claims, demands, 35 31 liabilities, costs, damages, expenses and causes of action of any nature whatsoever arising out of or attributable to the fraud, willful misconduct or gross negligence of such Memberincluding fiduciary duties). (f) No The organizational structure of the Common Member shall be required to consider is accurately depicted by the interests of, or have any duty stated or implied by law or equity to (including any fiduciary duty), any other Member.schematic diagram attached hereto as Schedule C.

Certain Duties and Obligations of the Members. (a) Subject No Member shall take any action or cause the Company to take any action, including the grant of any License or the grant of any assignment, sub-license, right or consent to use of any right pursuant to a License, that would conflict with the Member’s obligations under the IP Agreement or TAM Master Agreement or with the Company’s duties and obligations under this Agreement. Any Member Consent with respect to any application for registration or other legal protection for one or more Common Heritage Trademarks shall only be made upon notice, pursuant to Section 8.8, to all other Members. Any assignment, sub-license or grant by a Member of any right in a Common Heritage Trademark received by it pursuant to a License from the Company shall be subject to the terms provisions of this Agreement, including the Members shall take all action which may be reasonably necessary or appropriate for the formation and continuation provisions of Article IV, Section 2.5 of the Company as a limited liability company under TAM Master Agreement (and any agreements entered into pursuant to such Section) and the laws provisions of the State of DelawareIP Agreement, including Section 3.14 thereof with respect to any such assignment, sub-license or grant to a person not a party to the IP Agreement. (b) No Member shall take any action so as to cause the Company to be classified for Federal income tax purposes as an association taxable as a corporation and not as a partnershipcorporation. (c) The Company shall take all action which is necessary to form or qualify the Company and to conduct the business in which the Company is engaged under the laws of any jurisdiction in which the Company is doing business and to continue in effect such formation or qualification. (d) Except as otherwise permitted hereunder, no No Member shall take, or cause to be taken, any action that would result in any Member having any personal liability for the obligations of the Company. Neither any Member nor any Affiliate of any Member shall enter into any transaction with the Company unless the transaction (i) is expressly permitted hereunder, (ii) with respect to services, the fees for such services must be no greater than the fees charged generally by qualified, unaffiliated third-parties performing similar services in the geographical area in which the services are to be performed and the other terms of the agreement pursuant to which such services will be performed shall generally be no more onerous to the Company than the terms of agreements used by qualified, unaffiliated third-parties performing similar services in the geographical area in which the particular services are to be rendered, (iii) with respect to purchases and sales of property, the price paid for such property must be no greater than the price that an unaffiliated third-party would pay for such property and the other terms of the agreement pursuant to which such property is purchased or sold shall generally be no more onerous to the Company than the terms of agreements used by unaffiliated third-parties purchasing or selling similar property in the geographical area in which such property is located or (iv) is approved by all the Managers upon disclosure of any direct or indirect interest such Member or any Affiliate thereof may have in the transaction. Each Member hereby agrees that it shall not recommend that the Company or any Subsidiary enter into, or otherwise permit the Company or any Subsidiary to enter into any, an agreement with any Person that is an Affiliate of such Member without first disclosing to the other Member in writing that such Person is an Affiliate of such Member. (i) Except as otherwise expressly provided in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, The Members shall be solely under a duty as described herein to conduct the debts, obligations and liabilities of the Company, and no Member shall be obligated for any such debt, obligation or liability affairs of the Company solely by reason of being a Member in the best interests of the Company. Except as otherwise expressly provided in the Act or in this Agreement, the liability of 34 30 each Member shall be limited to the amount of Capital Contributions made (or required to be made) by such Member in accordance with the provisions of this Agreement. (ii) No Manager, Member Company and no partner, shareholder or member or other holder of an equity interest in any Member or any officer of director of any of the foregoing shall be liable, responsible or accountable to Members including the safekeeping and use of all Company or to any Member for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by it funds and arising out of or in connection with (A) any act performed within assets and the scope of the authority conferred on it by this Agreement, (B) its failure or refusal to perform any act, (C) its performance of, or failure to perform, any act on the reasonable reliance on advice of legal counsel to the Company or (D) the negligence, dishonesty or bad faith of any agent, consultant or broker of the Company, except, in each case described in clauses (A) through (D), to the extent the action or failure to act of such party (but not of such legal counsel, agent, consultant or broker) constituted fraud, willful misconduct or gross negligence. No Manager, partner, shareholder, member or other holder of an equity interest in any Member or officer or director of any of the foregoing shall be personally liable use thereof for the performance of such Member's obligations under this Agreement, but the foregoing shall not relieve any partner or member of any Member from its obligations to such Member. (iii) The Company shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless each Member and each general or limited partner of any Member or such Member's Affiliates, shareholder, members or other holder of any equity interest in such Member or its Affiliate, or any officer or director of any of the foregoing and each and every Manager or Officer (collectively, the "Indemnitees"), from and against any losses, claims, demands, liabilities, costs, damages, expenses and causes of action to which such Indemnitee may become subject in connection with any matter arising out of or incidental to this Agreement, including the formation hereof, the making of the Initial Capital Contributions and any matter for which such Indemnitee is exculpated under Section 4.5(e)(ii) or any other act performed or omitted to be performed by any such Indemnitee in connection with this Agreement or the Company's business or affairs; provided, however, that such act or omission was not attributable to such Indemnitee's fraud, willful misconduct or gross negligence or its breach of the representation set forth in Section 10.1. Any indemnity under this Section shall be paid solely out of and to the extent of Company Assets and shall not be a personal obligation of any Member and in no event will any Member be required, or permitted without the consent of all of the Members, to contribute additional capital to enable the Company to satisfy any obligation under this Section. The Company shall indemnify, defend and hold harmless each Member from and against any losses, claims, demands, liabilities, costs, damages, expenses with respect to any cause of action arising from the Merger Agreement and the transactions contemplated thereby to the extent such Member acted in its capacity as a Member exclusive benefit of the Company. (ivd) The attached Schedule B indicates those now existing Common Heritage Trademarks that each Member currently owns or possesses rights to use, all of which have been or will be contributed by the Members (s) as indicated on Schedule B (with respect to each such Common Heritage Trademark) to the Company substantially contemporaneously with its formation, including those Common Heritage Trademarks in respect of which ACNielsen shall hold the application for registration in escrow for the benefit of the Company (the “Formation Trademarks”). Each Member shall take, or cause to be taken, all such actions that it or any other Member shall deem to be necessary, desirable or appropriate to achieve the complete and effective transfer to the Company of all right, title and interest in and to the Formation Trademarks, including the transfer to the Company by ACNielsen of any registration of a Common Heritage Trademark resulting from the applications to be held in escrow by it for the benefit of the Company, each Manager and shall cooperate fully with the other Members shall be indemnified Company in achieving such complete and held harmless by each Member from and against any and all claims, demands, 35 31 liabilities, costs, damages, expenses and causes of action of any nature whatsoever arising out of or attributable to the fraud, willful misconduct or gross negligence of such Membereffective transfer. (fe) No As soon after the Distribution Date as is reasonably practicable, and in all events no later than six months after the Distribution Date, ACNielsen shall transfer ownership of the existing “xxxxxxx.xxx” Internet domain name to the Company, and shall provide such technical assistance to the Company as may be necessary to permit the Company to provide and maintain an Internet or Web site, through computer systems maintained by ACNielsen or by a third party as the Members may determine, for the purpose of providing and maintaining “hyperlinks” to the principal Internet or Web sites maintained by each Member. Each Member shall be required provide to consider the interests of, Company all information and technical assistance concerning that Member’s principal Internet or have any duty stated or implied by law or equity Web site necessary to (including any fiduciary duty), any other Memberpermit the Company to provide and maintain such “hyperlinks.”

Certain Duties and Obligations of the Members. (a) Subject to the terms of this Agreement, the The Members shall take all action which may be reasonably necessary or appropriate (i) for the formation and continuation of the Company as a limited liability company under the laws of the State of Delaware, (ii) for the development, maintenance, preservation and operation of the business of the Company in accordance with the provisions of this Agreement and applicable laws and regulations, and (iii) to form or qualify the Company to conduct the business in which the Company is engaged under the laws of any other jurisdiction in which the Company does or seeks to do business and to continue in effect such formation or qualification, provided that no Member may form or qualify the Company in such jurisdiction without the prior written consent of the Manager. (ba) No Member shall take any action so as to cause the Company to be classified for Federal federal income tax purposes as an association taxable as a corporation and not as a partnership. (cb) The Company shall take all action which is necessary to form or qualify the Company and to conduct the business in which the Company is engaged under the laws of any jurisdiction in which the Company is doing business and to continue in effect such formation or qualification. (d) Except as otherwise permitted hereunder, no Member shall take, or cause to be taken, any action that would result in any Member having any personal liability for the obligations of the Company. Neither any Member nor any Affiliate of any Member shall enter into any transaction with the Company unless the transaction (i) is expressly permitted hereunder, (ii) with respect to services, the fees for such services must be no greater than the fees charged generally by qualified, unaffiliated third-parties performing similar services in the geographical area in which the services are to be performed and the other terms of the agreement pursuant to which such services will be performed shall generally be no more onerous to the Company than the terms of agreements used by qualified, unaffiliated third-parties performing similar services in the geographical area in which the particular services are to be rendered, (iii) with respect to purchases and sales of property, the price paid for such property must be no greater than the price that an unaffiliated third-party would pay for such property and the other terms of the agreement pursuant to which such property is purchased or sold shall generally be no more onerous to the Company than the terms of agreements used by unaffiliated third-parties purchasing or selling similar property in the geographical area in which such property is located or (iv) is approved by all the Managers upon disclosure of any direct or indirect interest such Member or any Affiliate thereof may have in the transaction. Each Member hereby agrees that it shall not recommend that the Company or any Subsidiary enter into, or otherwise permit the Company or any Subsidiary to enter into any, an agreement with any Person that is an Affiliate of such Member without first disclosing to the other Member in writing that such Person is an Affiliate of such Member. (i) Except as otherwise expressly provided in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated for any such debt, obligation or liability of the Company solely by reason of being a Member of the Company. Except as otherwise expressly provided in the Act or in this Agreement, the liability of 34 30 each Member shall be limited to the amount of Capital Contributions made (or required to be made) by such Member in accordance with the provisions of this Agreement. (ii) No Manager, Member and no partner, shareholder or member or other holder of an equity interest in any Member or any officer of director of any of the foregoing shall be liable, responsible or accountable to the Company or to any Member for monetary damages for any losses, claims, damages or liabilities arising from any act or omission performed or omitted by it and arising out of or in connection with (A) any act performed within the scope of the authority conferred on it by this Agreement, (B) its failure or refusal to perform any act, (C) its performance of, or failure to perform, any act on the reasonable reliance on advice of legal counsel to the Company or (D) the negligence, dishonesty or bad faith of any agent, consultant or broker of the Company, except, in each case described in clauses (A) through (D), to the extent that they restrict or reduce the action duties and/or liabilities of a Member or failure to act the Manager otherwise existing at law or in equity (including under the LLC Act), shall replace the other duties and liabilities of such party (but not of such legal counsel, agent, consultant or broker) constituted fraud, willful misconduct or gross negligence. No Manager, partner, shareholder, member or other holder of an equity interest in any Member or officer or director of any of Manager (as the foregoing shall be personally liable for case may be). Notwithstanding anything to the performance of such Member's obligations under contrary contained in this Agreement, but the foregoing shall not relieve any partner or member of any Member from its obligations to such Member. (iii) The Company shall, Agreement and to the fullest extent permitted by applicable lawthe LLC Act, indemnifyno Member or Manager, defend in his, her or its capacity as such, shall have any fiduciary duties to any other Member or other Person bound by this Agreement, and hold harmless each Member hereby disclaims, eliminates, and each general shall not be liable under any circumstances for, any actual or limited partner claimed breach of any Member such duties of a Member, Manager or such Member's Affiliates, shareholder, members Authorized Person (or other holder of any equity interest in such Member or its Affiliate, or any officer or director an agent of any of the foregoing foregoing). To the extent any individual serving as a Member, Manager or Authorized Person (or as an agent of any of the foregoing) has any liabilities or duties at law or in equity for service in such capacities, including fiduciary duties or any other standard of care, more expansive than those set forth in this Section 3.5, such liabilities and duties are hereby modified to the extent permitted under the LLC Act to those set forth in the second sentence of this Section 3.5(c). Wherever in this Agreement a Person is empowered to take or make a decision, direction, consent, vote, determination, election, action or approval, whether in such Person’s capacity as a Member, Manager or Authorized Person, such Person is entitled to consider, favor and further such interests and factors as it desires, including its own interests and the interests of its Affiliates, and has no duty or obligation to consider, favor or further any other interest of the Company, any Subsidiary or any other Member or Person. This Section 3.5(c) shall not eliminate the implied contractual covenant of good faith and fair dealing. Officers of the Company, in the performance of their duties as such, shall owe to the Company and the Members duties of loyalty and due care of the type owed by officers of a Delaware corporation to such corporation and its stockholders. To the fullest extent permitted by law, including Section 18-1101(e) of the LLC Act, no Member, Manager or Authorized Person shall be liable to the Company, any Member or any other Person bound by this Agreement for breach of fiduciary duties unless such Member, Manager or Authorized Person acted in bad faith or engaged in willful misconduct. (c) To the fullest extent permitted by applicable law from time to time in effect, the Company shall indemnify the Manager, each Officer (and each and every Manager or Officer (collectively, the "Indemnitees"former Officer), from each Member (and against each former Member), and their respective representatives and agents (each, an “Indemnified Party”), hold each Indemnified Party harmless, and make advances for documented out-of-pocket expenses (including reasonable attorney’s fees and expenses) to such Indemnified Party with respect to any and all losses, claims, demands, liabilities, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees and expenses) and causes of action imposed on, incurred by, asserted or threatened against or to which such Indemnitee the Indemnified Party may otherwise become subject by reason of or in connection with any matter arising out act or omission of the Indemnified Party (or incidental to this Agreementthe Indemnified Party’s agents or employees), including any negligent act or omission, prior to, on or following the formation date hereof, for and on behalf of, or otherwise in connection with, the making Company that the Indemnified Party reasonably believed was in furtherance of the Initial Capital Contributions and any matter for which such Indemnitee is exculpated under Section 4.5(e)(ii) or any other act performed or omitted to be performed by any such Indemnitee in connection with this Agreement or interest of the Company's business , unless such act or affairsomission constitutes fraud, gross negligence or intentional misconduct; provided, however, that such act or omission was not attributable to such Indemnitee's fraud, willful misconduct or gross negligence or its breach of the representation set forth in Section 10.1. Any indemnity under this Section shall be paid solely out of and to the extent of Company Assets and foregoing provisions shall not be construed to grant an Indemnified Party a personal obligation of any Member and in no event will any Member right to be requiredindemnified by the Company for actions brought by the Company for breach of, or permitted without otherwise to enforce the consent of all of the Membersterms of, to contribute additional capital to enable this Agreement or any employment or other agreement between the Company to satisfy any obligation under this Sectionand such Person. The Company shall indemnifyIndemnified Party shall, defend upon reasonable notice, furnish such information and hold harmless each Member from and against any losses, claims, demands, liabilities, costs, damages, expenses with respect to any cause of action arising from the Merger Agreement and the transactions contemplated thereby proper assistance to the extent such Member acted in its capacity as a Member of Company (at reasonable times that do not interfere with current employment and at the Company. (iv’s cost, as applicable) The Companyas the Company may reasonably require in connection with any such litigation or any litigation in which it or any of its subsidiaries or Affiliates is, each Manager and the other Members shall be indemnified and held harmless by each Member from and against any and all claimsor may become, demandsa party, 35 31 liabilities, costs, damages, expenses and causes of action of any nature whatsoever while such Indemnified Party is a party to this Agreement or relating to or arising out of or attributable a period during which such Indemnified Party had been a party to the fraud, willful misconduct or gross negligence of such Memberthis Agreement. (f) No Member shall be required to consider the interests of, or have any duty stated or implied by law or equity to (including any fiduciary duty), any other Member.