Common use of Corporate Opportunity Matters Clause in Contracts

Corporate Opportunity Matters. Except as expressly provided in this Section 4, the Investors other than Enron (the "Rhythms Stockholders" for purposes of this Section 4.1) and the Company acknowledge and agree that neither Enron nor any of its Affiliates shall be expressly or implicitly restricted or proscribed pursuant to this Agreement, the relationship that exists between Enron and the Rhythms Stockholders, the relationship between Enron and the Company or otherwise, from engaging in any type of business activity or owning an interest in any type of business entity, regardless of whether such business activity is (or such business entity engages in businesses that are) in direct or indirect competition with the businesses or activities of the Company or of any of its Affiliates (as defined below) or any other person or entity. Without limiting the foregoing and except as otherwise expressly provided in this Section 4, the Rhythms Stockholders and the Company acknowledge and agree that (i) neither the Rhythms Stockholders, the Company or its Affiliates nor any other person or entity shall have any rights, by virtue of this Agreement, the relationship that exists between Enron and the Rhythms Stockholders, the relationship between Enron and the Company or otherwise, in any business venture or business opportunity of Enron or any of its Affiliates, and Enron and such Affiliates shall have no obligation to offer any interest in any such business venture or business opportunity to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other person or entity, or otherwise account to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other persons or entities in respect of any such business ventures, (ii) the activities of Enron or any of its Affiliates that are in direct or indirect competition with the activities of the Company or any of its Affiliates are hereby approved by the Rhythms Stockholders and the Company, and (iii) it shall be deemed not to be a breach of any fiduciary or other duties, if any and whether express or implied, that may be owed by Enron or its Affiliates to the Rhythms Stockholdersor the Company for Enron to permit itself or one of its Affiliates to engage in a business opportunity in preference or to the exclusion of the Rhythms Stockholders, the Company, its Affiliates or any other person or entity. 4.1 Except as expressly provided in this Section 4, the Investors other than MCI WorldCom (the "Rhythms Stockholders" for purposes of this Section 4.2) and the Company acknowledge and agree that neither MCI WorldCom nor any of its Affiliates shall be expressly or implicitly restricted or proscribed pursuant to this Agreement, the relationship that exists between MCI WorldCom and the Rhythms Stockholders, the relationship between MCI WorldCom and the Company or otherwise, from engaging in any type of business activity or owning an interest in any type of business entity, regardless of whether such business activity is (or such business entity engages in businesses that are) in direct or indirect competition with the businesses or activities of the Company or of any of its Affiliates (as defined below) or any other person or entity. Without limiting the foregoing and except as otherwise expressly provided in this Section 4, the Rhythms Stockholders and the Company acknowledge and agree that (i) neither the Rhythms Stockholders, the Company or its Affiliates nor any other person or entity shall have any rights, by virtue of this Agreement, the relationship that exists between MCI WorldCom and the Rhythms Stockholders, the relationship between MCI WorldCom and the Company or otherwise, in any business venture or business opportunity of MCI WorldCom or any of its Affiliates, and MCI WorldCom and such Affiliates shall have no obligation to offer any interest in any such business venture or business opportunity to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other person or entity, or otherwise account to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other persons or entities in respect of any such business ventures, (ii) the activities of MCI WorldCom or any of its Affiliates that are in direct or indirect competition with the activities of the Company or any of its Affiliates are hereby approved by the Rhythms Stockholders and the Company, and (iii) it shall be deemed not to be a breach of any fiduciary or other duties, if any and whether express or implied, that may be owe by MCI WorldCom or its Affiliates to the Rhythms Stockholders or the Company for MCI WorldCom to permit itself or one of its Affiliates to engage in a business opportunity in preference or to the exclusion of the Rhythms Stockholders, the Company, its Affiliates or any other person or entity. 4.2 For purposes of this Section 4, the term "Affiliate" shall mean (i) a person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with another person or entity or (ii) a person or entity that owns beneficially at least 50% of the equity of such other person or entity; provided, however, that when used to refer to Affiliates of the Company (as opposed to Affiliates of any other person or entity, such as Enron or MCI WorldCom), shall only mean persons or entities controlled by the Company (rather than persons or entities under common control with the Company), and when used to refer to Affiliates of Enron or MCI WorldCom, shall exclude the Company and its Affiliates. The term "control," including the correlative terms "controlling," "controlled by" and "under common control with" shall mean possession, directly or indirectly of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a person or entity.

Corporate Opportunity Matters. (a) Except as expressly provided in this Section 4, the Investors other than Enron (the "Rhythms Stockholders" for purposes of this Section 4.1") and the Company acknowledge and agree that neither Enron nor any of its Affiliates shall be expressly or implicitly restricted or proscribed pursuant to this Agreement, the relationship that exists between Enron and the Rhythms Stockholders, the relationship between Enron and the Company or otherwise, from engaging in any type of business activity or owning an interest in any type of business entity, regardless of whether such business activity is (or such business entity engages in businesses that are) in direct or indirect competition with the businesses or activities of the Company or of any of its Affiliates (as defined below) or any other person or entity. Without limiting the foregoing and except as otherwise expressly provided in this Section 4, the Rhythms Stockholders and the Company acknowledge and agree that (i) neither the Rhythms Stockholders, the Company or its Affiliates nor any other person or entity shall have any rights, by virtue of this Agreement, the relationship that exists between Enron and the Rhythms Stockholders, the relationship between Enron and the Company or otherwise, in any business venture or business opportunity of Enron or any of its Affiliates, and Enron and such Affiliates shall have no obligation to offer any interest in any such business venture or business opportunity to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other person or entity, or otherwise account to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other persons or entities in respect of any such business ventures, (ii) the activities of Enron or any of its Affiliates that are in direct or indirect competition with the activities of the Company or any of its Affiliates are hereby approved by the Rhythms Stockholders and the Company, and (iii) it shall be deemed not to be a breach of any fiduciary or other duties, if any and whether express or implied, that may be owed by Enron or its Affiliates to the Rhythms Stockholdersor Stockholders or the Company for Enron to permit itself or one of its Affiliates to engage in a business opportunity in preference or to the exclusion of the Rhythms Stockholders, the Company, its Affiliates or any other person or entity. 4.1 Except as expressly provided in this Section 4, the Investors other than MCI WorldCom (the "Rhythms Stockholders" for purposes of this Section 4.2b) and the Company acknowledge and agree that neither MCI WorldCom nor any of its Affiliates shall be expressly or implicitly restricted or proscribed pursuant to this Agreement, the relationship that exists between MCI WorldCom and the Rhythms Stockholders, the relationship between MCI WorldCom and the Company or otherwise, from engaging in any type of business activity or owning an interest in any type of business entity, regardless of whether such business activity is (or such business entity engages in businesses that are) in direct or indirect competition with the businesses or activities of the Company or of any of its Affiliates (as defined below) or any other person or entity. Without limiting the foregoing and except as otherwise expressly provided in this Section 4, the Rhythms Stockholders and the Company acknowledge and agree that (i) neither the Rhythms Stockholders, the Company or its Affiliates nor any other person or entity shall have any rights, by virtue of this Agreement, the relationship that exists between MCI WorldCom and the Rhythms Stockholders, the relationship between MCI WorldCom and the Company or otherwise, in any business venture or business opportunity of MCI WorldCom or any of its Affiliates, and MCI WorldCom and such Affiliates shall have no obligation to offer any interest in any such business venture or business opportunity to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other person or entity, or otherwise account to the Rhythms Stockholders, the Company, any Affiliate of the Company or any other persons or entities in respect of any such business ventures, (ii) the activities of MCI WorldCom or any of its Affiliates that are in direct or indirect competition with the activities of the Company or any of its Affiliates are hereby approved by the Rhythms Stockholders and the Company, and (iii) it shall be deemed not to be a breach of any fiduciary or other duties, if any and whether express or implied, that may be owe by MCI WorldCom or its Affiliates to the Rhythms Stockholders or the Company for MCI WorldCom to permit itself or one of its Affiliates to engage in a business opportunity in preference or to the exclusion of the Rhythms Stockholders, the Company, its Affiliates or any other person or entity. 4.2 For purposes of this Section 4, the term "Affiliate" shall mean (i) a person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with another person or entity or (ii) a person or entity that owns beneficially at least 50% of the equity of such other person or entity; provided, however, that when used to refer to Affiliates of the Company (as opposed to Affiliates of any other person or entity, such as Enron or MCI WorldComEnron), shall only mean persons or entities controlled by the Company (rather than persons or entities under common control with the Company), and when used to refer to Affiliates of Enron or MCI WorldCom, shall exclude the Company and its Affiliates. The term "control," including the correlative terms "controlling," "controlled by" and "under common control with" shall mean possession, directly or indirectly of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a person or entity.the