Common use of Corporate Opportunities Clause in Contracts

Corporate Opportunities. If any Manager or officer identifies or otherwise acquires knowledge or receives information of any Corporate Opportunity, and such Manager, officer or its respective Affiliate (the “Notifying Manager/Officer”) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate Opportunity.

Corporate Opportunities. If Except with respect to any Manager corporate opportunity expressly offered or presented to any Indemnitee solely in his or her capacity as a director or officer identifies of, through his or otherwise acquires knowledge her service to, or receives information pursuant to a contract with, the Corporation and its Subsidiaries (an “Excluded Opportunity”), to the fullest extent permitted by applicable law, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to such Indemnitee in circumstances where the application of any Corporate such doctrine to a corporate opportunity would conflict with any fiduciary duties or contractual obligations he or she may have as of the date of this Certificate of Incorporation or in the future. Nothing in this Certificate of Incorporation, including (without limitation) the foregoing sentence, shall be deemed to supersede any other agreement to which an Indemnitee may be a party or the rights of any other party thereto restricting such Indemnitee’s ability to have certain business interests or engage in certain business activities or ventures. To the fullest extent permitted by applicable law, but subject to the immediately preceding sentence, the Corporation hereby waives and renounces any interest or expectancy that any such Indemnitee shall offer any such corporate opportunity of which he or she may become aware to the Corporation (except to the extent such corporate opportunity is an Excluded Opportunity). To the fullest extent permitted by applicable law, but without limiting any separate agreement to which an Indemnitee may be party with the Corporation or any of its Subsidiaries, and such Manager, officer or its respective Affiliate (the “Notifying Manager/Officer”) desires except with respect to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubtany Excluded Opportunities, (i) a decision by such Indemnitee shall not have any fiduciary duty to refrain from the Board engagement in competitive activities in accordance with the provisions of Managers that the Company will not to pursue a Corporate Opportunity this Article XI, (ii) it shall not be subject to challenge by a breach of any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) Indemnitee’s duties or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability obligation of any funds pursuant type whatsoever of any Indemnitee if an Indemnitee engages in, or directs to Section 3.7)another Person, any such business interests or activities in preference to or to the exclusion of the Corporation or any of its Subsidiaries, and (iiiii) no Manager Indemnitee shall have be liable to the Corporation, any obligation to offer stockholder of the Corporation or any other Person who acquires an interest in the stock of the Corporation, by reason of the fact that such Indemnitee pursues or acquires a business opportunity other than a Corporate that is not an Excluded Opportunity for itself, directs such opportunity to another Person, or does not communicate such opportunity or information to the Board Corporation or any of Managersits Subsidiaries. In addition to and without limiting the foregoing provisions of this Article XI, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Company Corporation or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any if it is a business opportunity that (i) the Corporation and its Subsidiaries are neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the business of the Corporation and its Subsidiaries or is of no practical advantage to the Corporation and its Subsidiaries, (iii) is one in which the Corporation and its Subsidiaries have no interest or reasonable expectancy, or (iv) is one presented to any account for the benefit of an Indemnitee or an Affiliate of Indemnitee (other than the Corporation or any of its Subsidiaries) over which such Indemnitee has no direct or indirect influence or control, including, but not limited to, a Corporate Opportunityblind trust. For avoidance of doubt, the foregoing paragraphs of this Article XI are intended to renounce with respect to the Indemnitees, to the fullest extent permitted by Section 122(17) of the DGCL, any interest or expectancy of the Corporation or any of its Subsidiaries in, or in being offered an opportunity to participate in, any business opportunities that are not Excluded Opportunities, and this Article XI shall be construed to effect such renunciation to the fullest extent permitted by the DGCL. Any Indemnitee may, directly or indirectly, (i) acquire stock of the Corporation, and options, rights, warrants and appreciation rights relating to stock of the Corporation and (ii) except as otherwise expressly provided in this Certificate of Incorporation, exercise all rights of a stockholder of the Corporation relating to such stock, options, rights, warrants and appreciation rights. To the fullest extent permitted by applicable law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article XI.

Corporate Opportunities. If any Manager or officer Each Member hereby expressly acknowledges and agrees that if it identifies or otherwise acquires knowledge or receives information of any transaction or potential transaction or matter that relates directly to owning and operating self-propelled, self-elevating liftboat vessels (any such transaction or potential transaction, a “Corporate Opportunity”), and such Manager, officer Member or its respective Affiliate (the “Notifying Manager/OfficerMember”) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer Member will have the obligation to communicate and present all material information received by such Notifying Manager/Officer Member regarding such Corporate Opportunity to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer Member and the Notifying Manager/Officer Member may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer Member and the Notifying Manager/Officer Member shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager Member shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate Opportunity.

Corporate Opportunities. Each Stockholder and VCOC Fund shall cause its Stockholder Designees to recuse themselves from all deliberations of the Board, and the Company shall have no obligation to provide to such Stockholder Designees any information, regarding any acquisition, disposition, investment or similar transaction that the Company elects to pursue (a “Company Opportunity”) if such Stockholder or its Affiliates is competing with or is otherwise adverse to the Company with respect to such Company Opportunity. If (1) any Manager Stockholder or officer identifies its Affiliates consummates the transaction that at anytime constituted a Company Opportunity or (2) any Affiliate (other than a Controlled Affiliate who is prohibited from taking the following actions pursuant to Section 2.8) of a Stockholder acquires, makes an investment in or otherwise acquires knowledge agrees to manage or receives operate any Person listed on Exhibit B hereto (in either case, a “Competing Enterprise”), such Stockholder and VCOC Fund shall cause its Stockholder Designees to recuse themselves from all future deliberations of the Board relating to, and the Company shall have no obligation to provide to such Stockholder Designees any information regarding, that portion of the Company’s business as competes or would reasonably be expected to compete with the Competing Enterprise (a “Competing Action”). The consent of the Directors designated by such Stockholder or affiliated VCOC Fund shall not be required for authorizing, effecting or validating any Corporate transactions specified in Section 2.3 in connection with such Company Opportunity or Competing Actions. Solely for purposes of illustration, if an Affiliate of a Stockholder who is not bound by Section 2.8 were to acquire a Person listed on Exhibit B who operated in a certain geographic location, such Stockholder and VCOC Fund shall cause its Stockholder Designees to recuse themselves from all deliberations of the Board relating to the Company’s investment or operations in such geographic location and if the Company were considering an acquisition in such location, no consent of the Directors designated by such Stockholder or affiliated VCOC Fund would be required in connection with such acquisition. In addition, each Stockholder and VCOC Fund shall, and shall cause its Stockholder Designees to, keep confidential any information regarding any Company Opportunity, and including the existence of such Managerpotential acquisition, officer disposition, investment or similar transaction, that such Stockholder, VCOC Fund or Stockholder Designee learns about as a result of its respective Affiliate (participation in the “Notifying Manager/Officer”) desires to actively pursue such Corporate OpportunityBoard; provided, then such Notifying Manager/Officer will have however, that the obligation to communicate and present all material keep such information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer confidential shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubt, apply to information which (i) a decision by becomes generally available to the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7)public, and (ii) no Manager shall have any obligation is already in the possession of such Stockholder, VCOC Fund or Stockholder Designee prior to offer any business opportunity learning such information as a result of participation on the Board or being a Stockholder, (iii) becomes properly available to such Stockholder, VCOC Fund or Stockholder Designee on a non-confidential basis from a source other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not (iv) is required to be restricted from owningdisclosed by applicable law, operatingregulation, managinggovernmental order or which is otherwise requested by subpoena, controlling, engaging in, participating in, investing in, financing, rendering services for interrogatory or otherwise carrying out any business opportunity that is not a Corporate Opportunityother discovery request.

Corporate Opportunities. If Except with respect to any Manager corporate opportunity expressly offered or presented to any Indemnitee solely in his or her capacity as a director or officer identifies of, through his or otherwise acquires knowledge her service to, or receives information pursuant to a contract with, the Corporation and its subsidiaries (an “Excluded Opportunity”), to the fullest extent permitted by applicable law, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to such Indemnitee in circumstances where the application of any Corporate Opportunitysuch doctrine to a corporate opportunity would conflict with any fiduciary duties or contractual obligations he or she may have as of the date of this Restated Certificate or in the future. Nothing in this Restated Certificate, and including (without limitation) the foregoing sentence, shall be deemed to supersede any other agreement to which an Indemnitee may be a party or the rights of any other party thereto restricting such ManagerIndemnitee’s ability to have certain business interests or engage in certain business activities or ventures. To the fullest extent permitted by applicable law, officer or its respective Affiliate (the “Notifying Manager/Officer”) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity but subject to the Board of Managers. Following such presentationimmediately preceding sentence, the Board Corporation hereby waives and renounces any interest or expectancy that any such Indemnitee shall offer any such corporate opportunity of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination which he or she may become aware to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or Corporation (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination except to the Notifying Manager/Officer and extent such corporate opportunity is an Excluded Opportunity). To the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of fullest extent permitted by applicable law, but without limiting any separate agreement to which an Indemnitee may be party with the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company Corporation or any of its Subsidiaries subsidiaries, and will except with respect to any Excluded Opportunities, (a) such Indemnitee shall not have any fiduciary duty to refrain from the engagement in competitive activities in accordance with the provisions of this Article IX, (b) it shall not be restricted from owning, operating, managing, controlling, engaging a breach of any Indemnitee’s duties or any other obligation of any type whatsoever of any Indemnitee if an Indemnitee engages in, participating inor directs to another Person, investing inany such business interests or activities in preference to or to the exclusion of the Corporation or any of its subsidiaries, financingand (c) no Indemnitee shall be liable to the Corporation, rendering services for any stockholder of the Corporation or otherwise carrying out any other Person who acquires an interest in the stock of the Corporation, by reason of the fact that such Indemnitee pursues or acquires a business opportunity that is not an Excluded Opportunity for itself, directs such opportunity to another Person, or does not communicate such opportunity or information to the Corporation or any of its subsidiaries. In addition to and without limiting the foregoing provisions of this Article IX, a Corporate Opportunitycorporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation or any of its subsidiaries if it is a business opportunity that (i) the Corporation and its subsidiaries are neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the business of the Corporation and its subsidiaries or is of no practical advantage to the Corporation and its subsidiaries, (iii) is one in which the Corporation and its subsidiaries have no interest or reasonable expectancy, or (iv) is one presented to any account for the benefit of an Indemnitee or an Affiliate of Indemnitee (other than the Corporation or any of its subsidiaries) over which such Indemnitee has no direct or indirect influence or control, including, but not limited to, a blind trust. For avoidance of doubt, the foregoing paragraphs of this Article IX are intended to renounce with respect to the Indemnitees, to the fullest extent permitted by Section 122(17) of the DGCL, any interest or expectancy of the Corporation or any of its subsidiaries in, or in being offered an opportunity to participate in, any business opportunities that are not Excluded Opportunities, and this Article IX shall be construed to effect such renunciation to the fullest extent permitted by the DGCL. Any Indemnitee may, directly or indirectly, (A) acquire stock of the Corporation, and options, rights, warrants and appreciation rights relating to stock of the Corporation and (B) except as otherwise expressly provided in this Restated Certificate, exercise all rights of a stockholder of the Corporation relating to such stock, options, rights, warrants and appreciation rights. Notwithstanding anything to the contrary elsewhere contained in this Restated Certificate, subject to the rights of the holders of any series of Preferred Stock then outstanding, and in addition to any vote required by applicable law, the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the then outstanding shares of Voting Stock, voting together as a single class, shall be required to alter, amend or repeal, or to adopt any provision inconsistent with, this Article IX; provided however, that, to the fullest extent permitted by law, neither the alteration, amendment or repeal of this Article IX nor the adoption of any provision of this Restated Certificate inconsistent with this Article IX shall apply to or have any effect on the liability or alleged liability of any Indemnitee for or with respect to any activities or opportunities which such Indemnitee becomes aware prior to such alteration, amendment, repeal or adoption. To the fullest extent permitted by applicable law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX.

Corporate Opportunities. If Mayo shall not pursue, either by himself or through any Manager person other than the Company or officer identifies its Subsidiaries, any opportunity, transaction, agreement or otherwise acquires knowledge other arrangement involving any movie theater that is located in New Jersey, New York or receives information Connecticut or within a 20 mile radius of any Corporate Opportunity, and such Manager, officer existing theater then owned or operated by the Company or its respective Affiliate subsidiaries (the “Notifying Manager/Officer”) desires to actively pursue such Corporate an "Opportunity"), then such Notifying Manager/Officer will unless that Opportunity shall first have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity been presented to the Board Company and Mayo shall have followed the procedures set forth in this Section 11. At any time, Mayo may request in writing (a "Determination Request") a determination by the Company as to whether it intends to pursue any Opportunity. If the Opportunity that is the subject of Managersthe Determination Request has not yet been presented to the Company, Mayo shall include in the Determination Request a description in reasonable detail of the Opportunity. Following such presentationWithin 30 days of the date of the Determination Request, the Board of Managers Company shall determine as soon as practicable whether it shall pursue the Opportunity. If the Company will pursue such Corporate Opportunity and if (a) is unable for financial reasons to pursue the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the by a vote of its Board of Managers determines that Directors (excluding the Company will pursue such Corporate Opportunityvote of Mayo and his Affiliates) determines, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubtfor any reason, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate the Opportunity, then Mayo shall be entitled to pursue the Opportunity shall not be subject to challenge by himself or through any Member if other person, and, except as provided in the Board of Managers reasonably determined that subsequent sentence, neither the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in nor any Member becoming a Defaulting Member under Section 3.2(f) or (B) any Stockholder other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager than Mayo shall have any obligation to offer any business opportunity other than a Corporate Opportunity right in or to the Board Opportunity or the profits derived from the Opportunity. If the movie theater that is the subject of Managersthe Opportunity is compatible with the Clearview concept, upon the Company's request, Mayo shall use his best efforts to cause the theater to be operated under the Clearview name and management, for which the Company or any of its Subsidiaries and will not would be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate Opportunitypaid customary fees.

Corporate Opportunities. If any Manager or officer identifies or otherwise acquires knowledge or receives information of any Corporate Opportunity, and such Manager, officer or its respective Affiliate (the “Notifying Manager/Officer”) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) Unless otherwise agreed by the Company, the Investor shall use its reasonable best efforts to cause any Investor Designee to recuse himself or herself from all deliberations of the Board of Managers determines and any committee thereof, and the Company shall have no obligation to provide to such Investor Designee any information, regarding (i) any acquisition, disposition, investment or similar transaction that the Company will not or its Subsidiaries elects to pursue (a “Company Opportunity”) if the Investor or its Affiliates has one or more individuals serving, or is entitled to designate one or more individuals to serve, on the board of directors or body serving a similar function of any other Person who is competing with, or that is otherwise adverse to, the Company with respect to such Corporate Company Opportunity or (ii) any other matter in which there is a potential conflict of interest between the Company (or its Affiliates), on the one hand, and the Investor (or its Affiliates), on the other hand, as determined by the members of the Board (excluding such Investor Designee) in their reasonable judgment. In addition, the Investor shall, and shall use its reasonable best efforts to cause any Investor Designee to, keep confidential any information regarding any Company Opportunity, it shall promptly provide written notice of including the existence thereof, that the Investor or such determination to Investor Designee learns about in connection with such Investor Designee’s participation in the Notifying Manager/Officer meetings and the Notifying Manager/Officer may pursue such Corporate Opportunity independently deliberations of the Company either by itself or in conjunction with third parties or Board. 9 (b) To the Board of Managers determines that the Company will pursue such Corporate Opportunityfullest extent permitted by applicable Law, it shall promptly provide written notice of such determination subject to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly Section 5.01 or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubtSection 5.02, (i) Parent, the Investor and their respective directors, officers, employees and/or other representatives (each of the foregoing Persons other than Parent and the Investor, an “Identified Person”) shall have the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly, engage in the same or similar business activities or lines of business as the Company or any of its Subsidiaries, on its own account, or in partnership with, or as a decision by director, officer, employee or stockholder of any other Person, including those lines of business deemed to be competing with the Board Company or any of Managers its Subsidiaries, (ii) the Company, on behalf of itself, its Subsidiaries and its and their respective stockholders, renounces any interest or expectancy of the Company and its Subsidiaries in, or in being offered an opportunity to participate in, any business opportunity that may from time to time be presented to Parent, the Investor or any Identified Person, even if the opportunity is one that the Company will not or its Subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue a Corporate Opportunity shall not be subject if granted the opportunity to challenge by any Member if the Board do so, and none of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in or its stockholders or any Member becoming a Defaulting Member under Section 3.2(f) of its Subsidiaries or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager their stockholders shall have any obligation rights in and to offer any such business opportunity other than a Corporate Opportunity to or the Board income or profits derived therefrom, (iii) each of ManagersParent, the Investor and the Identified Persons may do business with any potential or actual customer or supplier of the Company or any of its Subsidiaries and will not be restricted from owning(iv) neither Parent, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for the Investor nor any Identified Person shall have any duty to communicate or otherwise carrying out any offer such business opportunity to the Company or any of its Subsidiaries or shall be liable to the Company or any of its Subsidiaries or any of their respective stockholders for breach of any fiduciary or other duty (contractual or otherwise), as a director or officer or otherwise, by reason of the fact that is Parent, the Investor or such Identified Person pursues or acquires such business opportunity, directs such business opportunity to another Person or fails to present such business opportunity, or information regarding such business opportunity, to the Company or its Subsidiaries, unless, in each case of clauses (ii) and (iv), Parent, the Investor or such Identified Person first learns about such business opportunity (A) in connection with any Investor Designee’s participation in the meetings and deliberations of the Board or (B) in any confidential and proprietary information (irrespective of the form of communication) obtained by or on behalf of the Investor or such Identified Persons from the Company or its Representatives through the ownership of the Investor Shares or the Investor’s governance rights pursuant to this Agreement (other than any such information which prior to its disclosure to the Investor, such Identified Persons or any of their respective Representatives on behalf of the Company or its Representatives was (w) generally available to the public, (x) available to the Investor, such Identified Persons or their respective Representatives on a non‑confidential basis, (y) available to the Investor, such Identified Persons or their respective Representatives from a source other than the Company or its Representatives, provided that such source was not known by the Investor or such Identified Persons or their respective Representatives to be bound by a Corporate Opportunity.confidentiality obligation to the Company with respect to such information at the time of its disclosure or (z) developed independently by or on behalf of the Investor, such Identified Persons or their respective Representatives without the use of such information). SECTION 2.03

Corporate Opportunities. If (a) For so long as any Manager Board Observer observes or officer identifies Investor Nominee serves on the Board and for six (6) months after the rights set forth in Sections 2.2 terminate or Investor otherwise ceases to have any Board Observer or Investor Nominee on the Board, neither Investor, nor its Affiliates, nor any such Board Observer or Investor Nominee shall, (and Investor shall procure that its Affiliates, and any such Board Observer or Investor Nominee shall not) directly or indirectly, engage in, invest in, participate in, control, operate, manage or otherwise acquires knowledge compete with the Company in the Business without the prior written approval of the Board of Directors, except for the investment by Investor and/or its Affiliates in the Company in accordance with the Transaction Documents. Investor shall not, and Investor shall procure that its Affiliates (including any Board Observer observing or receives Investor Nominee serving on the board of directors of the Company) shall not, use any information gained from any Board Observer who is an observer of any Corporate Opportunityproceedings of the Board or any Investor Nominee who is a director of the Company, and such Manager, officer in his or its respective Affiliate (her capacity as a Director of the “Notifying Manager/Officer”) desires Company or observer of the Board in pursuance of any business opportunity unless the Company has in writing declined to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material business opportunity (provided he or she has not otherwise learned of or obtained information received by such Notifying Manager/Officer regarding such Corporate Opportunity business opportunity from any other source), whereby no Board Observer or Investor Nominee shall share with Investor or any Affiliates of Investor or any other persons such business opportunity unless and until (i) the Investor Nominee has provided written notice to the Board of Managers. Following Directors indicating his or her intention to recommend such presentation, opportunity to Investor and (ii) (x) within thirty (30) days of the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice receipt of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that Directors, the Company will has expressly confirmed in writing that it has decided not to pursue a Corporate Opportunity such opportunity or (y) the Company subsequently determines to abandon the pursuit of such business opportunity and confirms the same in writing. The obligations of Investor under this Section 5.02 are separate and independent from the obligations of Investor under Section 2.08 of the Strategic Cooperation Agreement, and termination or cessation of its obligations under either provision shall not be subject to challenge by any Member if terminate or cease its obligations under the Board of Managers reasonably determined that the Company does not have the ability to fund other such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate Opportunityprovision.

Corporate Opportunities. If any Manager Executive acknowledges that during the course of his employment by Company he may be offered or officer identifies become aware of business or otherwise acquires knowledge investment opportunities in which Company may or receives information might have an interest (a "Corporate Opportunity") and that he has a duty to advise Company of any Corporate Opportunity, and such Manager, officer or its respective Affiliate (the “Notifying Manager/Officer”) desires to actively pursue such Corporate OpportunityOpportunities before acting upon them. Accordingly, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if Executive agrees (a) the that he will disclose to Company's Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Directors any Corporate Opportunity independently offered to Executive or of the Company either by itself or in conjunction with third parties or which Executive becomes aware and (b) that he will not act upon any Corporate Opportunity for his own benefit or for the benefit of any person or entity other than Company without first obtaining the consent or approval (a "Corporate Opportunity Consent") of Company's Board of Managers determines Directors (whose consent or approval may be granted or denied solely at the discretion of Company's Board of Directors); provided, however, that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice failure of such determination Company's Board of Directors to affirmatively approve the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such requested Corporate Opportunity independently Consent within 20 days after Executive's written disclosure of the CompanyCorporate Opportunity will be deemed to constitute the granting by Company of the requested Corporate Opportunity Consent. For the avoidance Upon receipt of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if Consent (whether as a result of the affirmative action of Company's Board of Managers reasonably determined that Directors or as a result of the Company failure of Company's Board of Directors to affirmatively approve the request within the 20-day period described in the preceding sentence), Executive may act upon the Corporate Opportunity for his own benefit or for the benefit of others so long as such action does not have the inhibit his ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member perform his duties under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for this Agreement or otherwise carrying out any business opportunity that is not represent a Corporate Opportunityconflict of interest in contravention of the agreements contained in Section 8 or a competitive activity in contravention of the agreements contained in paragraph 6.4.

Corporate Opportunities. If Notwithstanding anything contained herein or in any Manager other Transaction Documents (as defined in the Securities Purchase Agreement), each of the holders of Investor Preferred Stock, any of their respective Affiliates and any of its or officer identifies or otherwise acquires knowledge or receives information of their respective directors, officers, employees and consultants, including any Corporate Opportunity, and such Manager, officer or its respective Affiliate (the “Notifying Manager/Officer”) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity director appointed to the Board of Managers. Following such presentation, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.76.2(a) (collectively, the “Investor Related Parties”), and (ii) no Manager shall have may freely offer to any obligation to offer other Person or effect on behalf of itself or any other Person any other investment or business opportunity or prospective economic advantage, including those competitive with the business of the Corporation, or other than transactions in which the Corporation, its subsidiaries, any member of the Board or any other shareholder of the Corporation may have an interest or expectancy, including as a Corporate Opportunity result of any fiduciary duties applicable to such Person (“Investor Transactions”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, such Investor Related Party expressly and solely in such Investor Related Party’s capacity as a director of the Corporation, in each case without any prior Corporation, Board or stockholder notification or approval; provided, that if the Corporation, to the Board of ManagersInvestor Related Party’s knowledge, is considering the same Investor Transaction, the Company or Investor Related Party will promptly notify the Corporation of its interest in such Investor Transaction and cause each member of the Board that is an Investor Related Party to recuse himself from all Board discussions and activities relating to such Investor Transaction. Without limiting the generality of the foregoing, the Corporation agrees and acknowledges that Investor Related Parties and their respective Affiliates may have both passive and non-passive interests in Persons deemed competitors of the Corporation, and that the provisions of the immediately preceding sentence shall be applicable to such competitors, their respective Affiliates and any of its Subsidiaries their respective directors, officers and will not be restricted from owningemployees in respect thereof. Any person or entity purchasing, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for holding or otherwise carrying out acquiring any business opportunity that is not a Corporate Opportunityinterest in any shares of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 16.

Corporate Opportunities. If To the fullest extent permitted by applicable law, the Corporation, on behalf of itself and its subsidiaries, renounces any Manager interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any of the Sponsors or any of their respective officers, directors, agents, shareholders, members, partners, affiliates and subsidiaries (other than the Corporation and its subsidiaries) (each, a “Specified Party”), even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so and each such Specified Party shall have no duty to communicate or offer such business opportunity to the Corporation and, to the fullest extent permitted by applicable law, shall not be liable to the Corporation or any of its subsidiaries for breach of any fiduciary or other duty, as a director or officer identifies or otherwise otherwise, by reason of the fact that such Specified Party pursues or acquires knowledge such business opportunity, directs such business opportunity to another person or receives fails to present such business opportunity, or information of any Corporate Opportunityregarding such business opportunity, and such Manager, officer to the Corporation or its respective Affiliate subsidiaries. Notwithstanding the foregoing, a Specified Party who is a director or officer of the Corporation and who is offered a business opportunity in his or her capacity as a director or officer of the Corporation (the a “Notifying Manager/OfficerDirected Opportunity”) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer will have the obligation shall be obligated to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Directed Opportunity to the Board Corporation, provided, however, that all of Managers. Following the protections of this Article 8 shall otherwise apply to the Specified Parties with respect to such presentationDirected Opportunity, including, without limitation, the Board ability of Managers the Specified Parties to pursue or acquire such Directed Opportunity or to direct such Directed Opportunity to another person. Neither the amendment nor repeal of this Article 8, nor the adoption of any provision of this certificate of incorporation or the bylaws of the Corporation, nor, to the fullest extent permitted by Delaware Law, any modification of law, shall determine adversely affect any right or protection of any person granted pursuant hereto existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed). If any provision or provisions of this Article 8 shall be held to be invalid, illegal or unenforceable as soon as practicable whether the Company will pursue such Corporate Opportunity and if applied to any circumstance for any reason whatsoever: (a) the Board of Managers determines that the Company will not pursue such Corporate Opportunityvalidity, it shall promptly provide written notice legality and enforceability of such determination to the Notifying Manager/Officer provisions in any other circumstance and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by remaining provisions of this Article 8 (including, without limitation, each portion of any paragraph of this Article 8 containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in conjunction with third parties any way be affected or impaired thereby and (b) to the Board fullest extent possible, the provisions of Managers determines that this Article 8 (including, without limitation, each such portion of any paragraph of this Article 8 containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Company will pursue such Corporate OpportunityCorporation to protect its directors, it officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent permitted by law. This Article 8 shall promptly provide written not limit any protections or defenses available to, or indemnification rights of, any director or officer of the Corporation under this certificate of incorporation or applicable law. Any person or entity purchasing or otherwise acquiring any interest in any securities of the Corporation shall be deemed to have notice of such determination and to have consented to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently provisions of the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate Opportunitythis Article 8.

Corporate Opportunities. If any Manager or officer identifies or otherwise acquires knowledge or receives The Company acknowledges that the Purchaser will likely have, from time to time, information that may be of any Corporate Opportunity, and such Manager, officer or its respective Affiliate interest to the Company (the “Notifying Manager/OfficerRusnano Information”) desires to actively pursue such Corporate Opportunityregarding a wide variety of matters including, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board way of Managers. Following such presentationexample only, the Board of Managers shall determine as soon as practicable whether the Company will pursue such Corporate Opportunity and if (a) current and future investments the Board Purchaser (or its Affiliates) has made, may make, may consider or may become aware of Managers determines with respect to other companies and other technologies, products and services, including, without limitation, technologies, products and services that may be competitive with the Company will not pursue such Corporate OpportunityCompany’s, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) developments with respect to the Board technologies, products and services, and plans and strategies relating thereto, of Managers determines other companies, including, without limitation, companies that may be competitive with the Company. The Company recognizes that a portion of such Rusnano Information may be of interest to the Company. Such Rusnano Information may or may not be known by the Rusnano Designee. The Company, as a material part of the consideration for this Agreement, agrees that the Purchaser and the Rusnano Designee shall have no duty to disclose any Rusnano Information to the Company will pursue such Corporate Opportunityor permit the Company to participate in any projects or investments based on any Rusnano Information, or to otherwise take advantage of any opportunity that may be of interest to the Company if it shall promptly provide written notice were aware of such determination Rusnano Information, and hereby waives, to the Notifying Manager/Officer and extent permitted by law, any claim based on the Notifying Manager/Officer corporate opportunity doctrine or otherwise that could limit the Purchaser’s ability to pursue opportunities based on such Rusnano Information or that would require the Purchaser or the Rusnano Designee to disclose any such Rusnano Information to the Company or offer any opportunity relating thereto to the Company. The foregoing waiver shall not directly or indirectly pursue such Corporate Opportunity independently apply to any opportunity that is presented to the Rusnano Designee principally because of his status as a director of the Company. For , nor shall the avoidance waiver apply to Purchaser principally because of doubtits status as a stockholder of the Company, (i) a decision by so long as the Board of Managers that the Company will not Purchaser has access to pursue a Corporate Opportunity shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds material non-public information pursuant to Section 3.7), and (ii6(b) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company hereof or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate Opportunityotherwise.

Corporate Opportunities. If any Manager or officer identifies or otherwise acquires knowledge or receives information of any Corporate OpportunityIn recognition that the Designating Stockholder currently has, and will in the future have or will consider acquiring, investments in numerous companies with respect to which Indemnitee or some other representative of the Designating Stockholder may serve as an advisor, a director or in some other capacity, and in recognition that Indemnitee has a myriad of duties to various investors and partners (including the Designating Stockholder), and in anticipation that the Company, on the one hand, and the Designating Stockholder (or one or more portfolio companies of the Designating Stockholder), on the other hand, may have an interest in the same areas of corporate opportunities, and in recognition of the investment and strategic expertise of the Designating Stockholder and the benefits to be derived by the Company therefrom, (i) the Designating Stockholder has agreed to assist the Company in the analysis and evaluation of potential acquisitions and other strategic transactions that from time to time may be mutually designated by the Company and the Designating Stockholder for such Manager, officer or its respective Affiliate analysis and evaluation (the “Notifying Manager/OfficerMutually Designated Transactions”), and (ii) desires to actively pursue such Corporate Opportunity, then such Notifying Manager/Officer the Company acknowledges and agrees that neither Indemnitee nor the Designating Stockholder will have the obligation a duty (contractual or otherwise) to communicate and or present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity to the Board Company, or any of Managersits affiliates, any corporate opportunities of which he or it becomes aware. Following such presentationFurthermore, the Board Company, on behalf of Managers shall determine as soon as practicable whether itself and each of its affiliates, hereby renounces any interest, right, or expectancy in any such opportunity (other than Mutually Designated Transactions) of which the Indemnitee or Designating Stockholder becomes aware (other than by virtue of confidential information acquired from the Company) to the fullest extent permitted by law, and the Company, on behalf of itself and each of its affiliates, hereby waives any claim against the Indemnitee or the Designating Stockholder or any of its direct or indirect beneficial owners based on the corporate opportunity doctrine, any alleged unfairness to the Company will pursue such Corporate Opportunity and if (a) or otherwise that would require the Board Indemnitee or Designating Stockholder or any of Managers determines that its direct or indirect beneficial owners to offer any opportunity relating thereto to the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer may pursue such Corporate Opportunity independently of the Company either by itself or in conjunction with third parties or (b) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination to the Notifying Manager/Officer and the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently of the Companyother than Mutually Designated Transactions). For the avoidance of doubt, (i) it is understood and agreed that neither Indemnitee nor the Designating Stockholder shall have the right to pursue for his or its own benefit any corporate opportunity related to a decision by the Board of Managers that Mutually Designated Transaction, unless the Company will not to pursue a Corporate Opportunity shall not be subject to challenge waives by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity written notice to the Board of ManagersDesignating Stockholder its interest therein. The Company, the Company or any on its own behalf and on behalf of its Subsidiaries affiliates, hereby renounces and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for waives any right to require Indemnitee or otherwise carrying out any business opportunity that is not the Designating Stockholder to act in a Corporate Opportunitymanner inconsistent with the provisions of this Section 15.

Corporate Opportunities. If Larrx X. Xxxxxx xxxees pursuant to the Corporate Opportunity Agreement for the benefit of the Holders of the Notes that if any Manager corporate opportunity, business opportunity, proposed transaction, acquisition, disposition, participation, interest, or officer identifies other opportunity to acquire an interest in any business or otherwise acquires knowledge prospect in the same business or receives information in any business reasonably related to the business of the Trust or any Corporate of its Subsidiaries or in any machinery or equipment useful in the business of the Trust or any of its Subsidiaries (a "Business Opportunity") comes to his attention or shall be made available to him or any of his Affiliates, a complete and accurate description of such Business Opportunity, including all of the terms and such Manager, officer or its respective Affiliate (conditions thereof and the “Notifying Manager/Officer”) desires to actively pursue such Corporate identity of all other Persons involved in the Business Opportunity, then such Notifying Manager/Officer will have the obligation to communicate and present all material information received by such Notifying Manager/Officer regarding such Corporate Opportunity shall be promptly presented in writing to the Board of Managers. Following Directors of each of the Issuers and the Fairness Committee of each of the Issuers and each Issuer shall be entitled to pursue and take advantage of such presentationBusiness Opportunity, either directly or through a wholly owned Subsidiary, and Larrx X. Xxxxxx xxxll not, nor shall any of his Affiliates (other than the Trust or any wholly owned Subsidiary of the Trust), pursue or take advantage of a Business Opportunity unless majorities of the Board of Managers shall determine as soon as practicable whether Directors of each of the Company will pursue such Corporate Opportunity Issuers and the Fairness Committee of each of the Issuers (including majorities of each Issuer's disinterested directors, if (aany, and Independent members of the Fairness Committee) have determined that it is not in the Board of Managers determines that the Company will not pursue such Corporate Opportunity, it shall promptly provide written notice interests of such determination Issuer to pursue or take advantage of such Business Opportunity. Notwithstanding the foregoing, Business Opportunities (1) relating to the Notifying Manager/Officer purchase of machinery and equipment or real estate and not constituting a business within the Notifying Manager/Officer may pursue such Corporate Opportunity independently meaning of Section 11.01(d) of Regulation S-X of the Company either by itself or in conjunction with third parties Commission or (b2) the Board of Managers determines that the Company will pursue such Corporate Opportunity, it shall promptly provide written notice of such determination relating to the Notifying Manager/Officer sale of goods and services by an Affiliate in the Notifying Manager/Officer shall not directly or indirectly pursue such Corporate Opportunity independently ordinary course of business as conducted as of the Company. For the avoidance of doubt, (i) a decision by the Board of Managers that the Company will not to pursue a Corporate Opportunity Issue Date shall not be subject to challenge by any Member if the Board of Managers reasonably determined that the Company does not have the ability to fund such Corporate Opportunity through (A) a Capital Call that would not result in any Member becoming a Defaulting Member under Section 3.2(f) or (B) any other commercially reasonable source of funding that is readily available at such time (excluding for the purposes hereof the availability of any funds pursuant to Section 3.7), and (ii) no Manager shall have any obligation to offer any business opportunity other than a Corporate Opportunity to the Board of Managers, the Company or any of its Subsidiaries and will not be restricted from owning, operating, managing, controlling, engaging in, participating in, investing in, financing, rendering services for or otherwise carrying out any business opportunity that is not a Corporate OpportunityAgreement.