Common use of Fiduciary Duties; Competing Activities Clause in Contracts

Fiduciary Duties; Competing Activities. (a) To the fullest extent permitted by applicable law and notwithstanding any other provision of this Agreement, the Members hereby agree that pursuant to the authority of Sections 18-1101(c)-(e) of the Delaware Act, the Members hereby eliminate any and all fiduciary duties, at law, in equity or under this Agreement, of the Manager or the Members and their respective advisors, shareholders, partners, members, Representatives and Affiliates (in each case, other than those Persons who are or were employees of Holdco or its Subsidiaries) (each, a “Covered Investor”) that are owed to the Company or the Members and hereby agree that such Persons shall have no fiduciary duties to the Company or any Member; provided, however, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing and, for the avoidance of doubt, shall not remove or supersede any restrictions or obligations placed on any employee of Holdco or any of its Subsidiaries, including, without limitation, any of the confidentiality, non-competition and non-solicitation obligations set forth in any employment agreements between the Holdco or any of its Subsidiaries and any employee of Holdco or any of its Subsidiaries and in any Award Agreements. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Investor otherwise existing at law or in equity to the Company or the Members, are agreed by the Members to replace such other duties and liabilities of each such Covered Investor. (b) In furtherance of the foregoing, the Members hereby agree that each Covered Investor may engage or invest in, independently or with others, any business activity of any type or description, including those that might be in the same business as or similar to the Company, Holdco or its Subsidiaries’ business and that might be in direct or indirect competition with the Company, Holdco or its Subsidiaries. Neither the Company, nor Holdco or its Subsidiaries nor any Member shall have any right in or to such other ventures or activities or to the income or proceeds derived therefrom. The pursuit of any such ventures or activities by a Covered Investor, even if competitive with the business of the Company, Holdco or its Subsidiaries, shall not be deemed wrongful or improper and shall not constitute a conflict of interest or breach of fiduciary or other duty by such Covered Investor with respect to the Company, Holdco or its Subsidiaries or the other Members. No Covered Investor who is not an employee of Holdco or its Subsidiaries shall be obligated to present any investment opportunity or prospective economic advantage to the Company, Holdco or its Subsidiaries, even if the opportunity is of the character that, if presented to the Company, Holdco or its Subsidiaries, could be taken by the Company, Holdco or its Subsidiaries, and such Covered Investor shall have the right to hold such investment opportunity or prospective economic advantage for its own account or the account of its portfolio companies (as applicable) or to recommend such opportunity to Persons other than the Company, Holdco and its Subsidiaries and the Members. In addition, to the maximum extent permitted from time to time under applicable law, the Company and the Members renounce any interest or expectancy in being offered an opportunity to participate in business opportunities that are from time to time presented to any Covered Investor who is not an employee of Holdco or its Subsidiaries, and the Company and the Members waive any claim related to the foregoing. Each Member acknowledges that the Covered Investors may own and/or manage other businesses, including businesses that may compete directly or indirectly with the Company, Holdco or its Subsidiaries and for such Covered Investors’ time, and each such Member hereby waives any and all rights and claims which it may otherwise have against the Covered Investors as a result of any such activities.

Fiduciary Duties; Competing Activities. (a) To the fullest extent permitted by applicable law and notwithstanding any other provision of this Agreement, the Members hereby agree that pursuant to the authority of Sections 18-1101(c)-(e) of the Delaware Act, the Members hereby eliminate any and all fiduciary duties, at law, in equity or under this Agreement, of the Manager or the Members and their respective advisors, shareholders, partners, members, Representatives and Affiliates (in each case, other than those Persons who are or were employees of Holdco or its Subsidiaries) (each, a “Covered Investor”) that are owed to the Company or the Members and hereby agree that such Persons shall have no fiduciary duties to the Company or any Member; provided, however, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing dealing, and, for the avoidance of doubt, shall not remove or supersede any restrictions or obligations placed on any employee of Holdco or any of its Subsidiaries, including, without limitation, any of the confidentiality, non-competition and non-solicitation obligations set forth in any employment agreements between the Holdco or any of its Subsidiaries and any employee of Holdco or any of its Subsidiaries and in any Award Agreements. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Investor otherwise existing at law or in equity to the Company or the Members, are agreed by the Members to replace such other duties and liabilities of each such Covered Investor. (b) In furtherance of the foregoing, the Members hereby agree that each Covered Investor may engage or invest in, independently or with others, any business activity of any type or description, including those that might be in the same business as or similar to the Company, Holdco or its Subsidiaries’ business and that might be in direct or indirect competition with the Company, Holdco or its Subsidiaries. Neither the Company, nor Holdco or its Subsidiaries nor any Member shall have any right in or to such other ventures or activities or to the income or proceeds derived therefrom. The pursuit of any such ventures or activities by a Covered Investor, even if competitive with the business of the Company, Holdco or its Subsidiaries, shall not be deemed wrongful or improper and shall not constitute a conflict of interest or breach of fiduciary or other duty by such Covered Investor with respect to the Company, Holdco or its Subsidiaries or the other Members. No Covered Investor who is not an employee of Holdco or its Subsidiaries shall be obligated to present any investment opportunity or prospective economic advantage to the Company, Holdco or its Subsidiaries, even if the opportunity is of the character that, if presented to the Company, Holdco or its Subsidiaries, could be taken by the Company, Holdco or its Subsidiaries, and such Covered Investor shall have the right to hold such investment opportunity or prospective economic advantage for its own account or the account of its portfolio companies (as applicable) or to recommend such opportunity to Persons other than the Company, Holdco and its Subsidiaries and the Members. In addition, to the maximum extent permitted from time to time under applicable law, the Company and the Members renounce any interest or expectancy in being offered an opportunity to participate in business opportunities that are from time to time presented to any Covered Investor who is not an employee of Holdco or its Subsidiaries, and the Company and the Members waive any claim related to the foregoing. Each Member acknowledges that the Covered Investors may own and/or manage other businesses, including businesses that may compete directly or indirectly with the Company, Holdco or its Subsidiaries and for such Covered Investors’ time, and each such Member hereby waives any and all rights and claims which it may otherwise have against the Covered Investors as a result of any such activities.

Fiduciary Duties; Competing Activities. (a) To the fullest extent permitted by applicable law and notwithstanding any other provision of this Agreement, the Members hereby agree that pursuant to the authority of Sections 18-1101(c)-(e) of the Delaware Act, the Members hereby eliminate any and all fiduciary duties, at law, in equity or under this Agreement, of the Manager or the Members and their respective its advisors, shareholders, partners, members, Representatives and Affiliates (in each case, other than those Persons who are or were employees of Holdco or its Subsidiaries) (each, a “Covered Investor”) that are owed to the Company or the Members and hereby agree that such Persons shall have no fiduciary duties to the Company or any Member; provided, however, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing and, for the avoidance of doubt, shall not remove or supersede any restrictions or obligations placed on any employee of Holdco or any of its Subsidiaries, including, without limitation, any of the confidentiality, non-competition and non-solicitation obligations set forth in any employment agreements between the Holdco or any of its Subsidiaries and any employee of Holdco or any of its Subsidiaries and in any Award Agreements. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Investor otherwise existing at law or in equity to the Company or the Members, are agreed by the Members to replace such other duties and liabilities of each such Covered Investor. (b) In furtherance of the foregoing, the Members hereby agree that each Covered Investor may engage or invest in, independently or with others, any business activity of any type or description, including those that might be in the same business as or similar to the Company, Holdco or its Subsidiaries’ business and that might be in direct or indirect competition with the Company, Holdco or its Subsidiaries. Neither the Company, nor Holdco or its Subsidiaries nor any Member shall have any right in or to such other ventures or activities or to the income or proceeds derived therefrom. The pursuit of any such ventures or activities by a Covered Investor, even if competitive with the business of the Company, Holdco or its Subsidiaries, shall not be deemed wrongful or improper and shall not constitute a conflict of interest or breach of fiduciary or other duty by such Covered Investor with respect to the Company, Holdco or its Subsidiaries or the other Members. No Covered Investor who is not an employee of Holdco or its Subsidiaries shall be obligated to present any investment opportunity or prospective economic advantage to the Company, Holdco or its Subsidiaries, even if the opportunity is of the character that, if presented to the Company, Holdco or its Subsidiaries, could be taken by the Company, Holdco or its Subsidiaries, and such Covered Investor shall have the right to hold such investment opportunity or prospective economic advantage for its own account or the account of its portfolio companies (as applicable) or to recommend such opportunity to Persons other than the Company, Holdco and its Subsidiaries and the Members. In addition, to the maximum extent permitted from time to time under applicable law, the Company and the Members renounce any interest or expectancy in being offered an opportunity to participate in business opportunities that are from time to time presented to any Covered Investor who is not an employee of Holdco or its Subsidiaries, and the Company and the Members waive any claim related to the foregoing. Each Member acknowledges that the Covered Investors may own and/or manage other businesses, including businesses that may compete directly or indirectly with the Company, Holdco or its Subsidiaries and for such Covered Investors’ time, and each such Member hereby waives any and all rights and claims which it may otherwise have against the Covered Investors as a result of any such activities.

Fiduciary Duties; Competing Activities. (a) To the fullest extent permitted by applicable law and notwithstanding any other provision of this Agreement, the Members hereby agree that pursuant to the authority of Sections 18-1101(c)-(e) of the Delaware Act, the Members hereby eliminate any and all fiduciary duties, at law, in equity or under this Agreement, of the Manager or the Members and their respective its advisors, shareholders, partners, members, Representatives and Affiliates (in each case, other than those Persons who are or were employees of Holdco or its Subsidiaries) (each, a “Covered Investor”) that are owed to the Company or the Members and hereby agree that such Persons shall have no fiduciary duties to the Company or any Member; provided, however, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing dealing, and, for the avoidance of doubt, shall not remove or supersede any restrictions or obligations placed on any employee of Holdco or any of its Subsidiaries, including, without limitation, any of the confidentiality, non-competition and non-solicitation obligations set forth in any employment agreements between the Holdco or any of its Subsidiaries and any employee of Holdco or any of its Subsidiaries and in any Award Agreements. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Investor otherwise existing at law or in equity to the Company or the Members, are agreed by the Members to replace such other duties and liabilities of each such Covered Investor. (b) In furtherance of the foregoing, the Members hereby agree that each Covered Investor may engage or invest in, independently or with others, any business activity of any type or description, including those that might be in the same business as or similar to the Company, Holdco or its Subsidiaries’ business and that might be in direct or indirect competition with the Company, Holdco or its Subsidiaries. Neither the Company, nor Holdco or its Subsidiaries nor any Member shall have any right in or to such other ventures or activities or to the income or proceeds derived therefrom. The pursuit of any such ventures or activities by a Covered Investor, even if competitive with the business of the Company, Holdco or its Subsidiaries, shall not be deemed wrongful or improper and shall not constitute a conflict of interest or breach of fiduciary or other duty by such Covered Investor with respect to the Company, Holdco or its Subsidiaries or the other Members. No Covered Investor who is not an employee of Holdco or its Subsidiaries shall be obligated to present any investment opportunity or prospective economic advantage to the Company, Holdco or its Subsidiaries, even if the opportunity is of the character that, if presented to the Company, Holdco or its Subsidiaries, could be taken by the Company, Holdco or its Subsidiaries, and such Covered Investor shall have the right to hold such investment opportunity or prospective economic advantage for its own account or the account of its portfolio companies (as applicable) or to recommend such opportunity to Persons other than the Company, Holdco and its Subsidiaries and the Members. In addition, to the maximum extent permitted from time to time under applicable law, the Company and the Members renounce any interest or expectancy in being offered an opportunity to participate in business opportunities that are from time to time presented to any Covered Investor who is not an employee of Holdco or its Subsidiaries, and the Company and the Members waive any claim related to the foregoing. Each Member acknowledges that the Covered Investors may own and/or manage other businesses, including businesses that may compete directly or indirectly with the Company, Holdco or its Subsidiaries and for such Covered Investors’ time, and each such Member hereby waives any and all rights and claims which it may otherwise have against the Covered Investors as a result of any such activities.