Common use of Company Opportunities Clause in Contracts

Company Opportunities. (a) The Company understands that Purchaser and its Affiliates are or may become interested, directly or indirectly, in various other businesses and undertakings, some of which may be similar in nature to the business of the Company. The Company agrees that Purchaser and its Affiliates may engage in or possess an interest, direct or indirect, in any business venture of any nature or description for their own account, independently or with others, and subject to Section 4.6(c) below, may do so without any accountability or any obligation to afford the Company any opportunity to participate therein. In the event that Purchaser, any Purchaser Observer and each of its and their respective Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Company or any of its Subsidiaries, none of Purchaser, any Purchaser Observer or any of their respective Affiliates shall have any duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or to refrain from pursuing or acquiring such corporate opportunity for its own benefit. (b) None of Purchaser, any Purchaser Observer or any of their respective Affiliates shall be liable, to the fullest extent permitted by law, to the Company or any of its Subsidiaries or stockholders of the Company for breach of any duty (contractual or otherwise) by reason of the fact that Purchaser, the Purchaser Observer or any of their respective Affiliates pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Company. (c) Solely in the event the Purchaser Observer, exclusively and expressly in his or her capacity as an observer on the Board, is presented with any potential transaction or corporate opportunity that (i) would reasonably be expected to be a suitable investment for the Company, (ii) based on the manner in which such potential transaction or corporate opportunity was presented to the Purchaser Observer, was clearly presented to the Purchaser Observer solely and exclusively as a potential transaction or corporate opportunity only for the Company and not for multiple persons and (iii) is a First Identified Business Opportunity, then such Purchaser Observer shall be required to first

Company Opportunities. (a) The Company understands that Purchaser and its Affiliates are or may become interested, directly or indirectly, in various other businesses and undertakings, some of which may be similar in nature to the business of the Company. The Company agrees that Purchaser and its Affiliates may engage in or possess an interest, direct directly or indirectindirectly, in any business venture of any nature or description for their own account, independently or with others, and subject to Section 4.6(c) below, may do so without any accountability or any obligation to afford to the Company any opportunity to participate therein. In the event that Purchaser, any Purchaser Observer Nominee and each of its and their respective Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Company or any of its Subsidiaries, none of Purchaser, any Purchaser Observer or any Nominee and each of its and their respective Affiliates shall have any duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or to refrain from pursuing or acquiring such corporate opportunity for its own benefit, unless, with respect to a Purchaser Nominee only, failure to take such action, or refrain from doing so, as the case may be, would violate the Board of Directors’ fiduciary duties under applicable Law. (b) None of Purchaser, any Purchaser Observer or any Nominee and each of its and their respective Affiliates shall be liable, to the fullest extent permitted by law, to the Company or any of its Subsidiaries or stockholders of the Company for breach of any duty (contractual or otherwise) by reason of the fact that Purchaser, the Purchaser Observer or any Nominee and each of its and their respective Affiliates pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Company, provided that, in the case of the Purchaser Nominee, such Purchaser Nominee has otherwise abided with the requirements of Section 4.6(c). (c) Solely in the event the Notwithstanding Section 4.6(a), if any Purchaser Observer, exclusively and expressly in his or her capacity as an observer on the Board, Nominee is presented with any potential transaction or corporate opportunity that (i) would reasonably be expected to be a suitable investment for the Company, (ii) based on the manner expressly in which such potential transaction his or corporate opportunity was presented to the Purchaser Observer, was clearly presented to the Purchaser Observer solely and exclusively her capacity as a potential transaction or corporate opportunity only for member of the Board of Directors (a “Company and not for multiple persons and (iii) is a First Identified Business Opportunity”), then such Purchaser Observer Nominee shall be required to firstfirst present such Company Opportunity to the Company prior to the Purchaser Nominee’s pursuit of, or investment in, such Company Opportunity, and shall not pursue such Company Opportunity unless and until declined by the Company.