Common use of Freedom to Pursue Opportunities Clause in Contracts

Freedom to Pursue Opportunities. The parties expressly acknowledge and agree that: (i) the Onex Stockholders, the Carlyle Stockholders, each Onex Director who is an employee of any Onex Stockholder or an employee of an Affiliate of any Onex Stockholder, each Carlyle Director who is an employee of any Carlyle Stockholder or an employee of an Affiliate of any Carlyle Stockholder and their respective Affiliates 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 its Subsidiaries, including those deemed to be competing with the Company or its Subsidiaries; and (ii) in the event that any Onex Stockholder, any Carlyle Stockholder, any such Onex Director, any such Carlyle Director or any of their respective Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company or its Subsidiaries and such Stockholder, Director or any other Person, the Stockholder, Director or Affiliate thereof, as applicable, shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement to the contrary, shall not be liable to the Company or its Subsidiaries or their respective Affiliates or stockholders for breach of any duty (contractual or otherwise) by reason of the fact that such Stockholder, Director or any Affiliate thereof, as applicable, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or its Subsidiaries unless, in the case of any such Person who is a Director, such opportunity is expressly offered to such Director in writing solely in his or her capacity as a Director.

Freedom to Pursue Opportunities. The parties expressly acknowledge and agree that: (ia) To the Onex Stockholdersfullest extent permitted by applicable law, the Carlyle StockholdersCompany, each Onex Director who is an employee on behalf of itself and its subsidiaries, renounces any Onex Stockholder interest, duty or an employee expectancy of an Affiliate of any Onex Stockholder, each Carlyle Director who is an employee of any Carlyle Stockholder or an employee of an Affiliate of any Carlyle Stockholder and their respective Affiliates 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 and its subsidiaries in, or its Subsidiariesin being offered an opportunity to participate in, including those deemed business opportunities that are from time to be competing with time presented to any of either the Company Electrum Parties or its Subsidiaries; and (ii) in the event that any Onex Stockholder, any Carlyle Stockholder, any such Onex Director, any such Carlyle Director MERS Party or any of their respective officers, directors, agents, shareholders, members, partners, Affiliates acquires knowledge of and subsidiaries (other than the Company and its subsidiaries) (each, a potential transaction or matter “Specified Party”), even if the opportunity is one that may be a corporate opportunity for both the Company or its Subsidiaries 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 Stockholder, Director or any other Person, the Stockholder, Director or Affiliate thereof, as applicable, Specified Party shall have no duty (contractual or otherwise) to communicate or present offer such corporate business opportunity to the Company or its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement to the contraryfullest extent permitted by applicable law, shall not be liable to the Company or any of its Subsidiaries or their respective Affiliates or stockholders subsidiaries for breach of any duty (contractual fiduciary or other duty, as a Director or officer or otherwise) , by reason of the fact that such Stockholder, Director or any Affiliate thereof, as applicable, directly or indirectly, Specified Party pursues or acquires such opportunity for itselfbusiness opportunity, directs such business opportunity to another PersonPerson or fails to present such business opportunity, or does not present information regarding such opportunity business opportunity, to the Company or its Subsidiaries unlesssubsidiaries. Notwithstanding the foregoing, in the case of any such Person a Specified Party who is a Director, such Director or officer of the Company and who is offered a business opportunity is expressly offered to such Director in writing solely in his or her capacity as a DirectorDirector or officer of the Company (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Company, provided, however, that all of the protections of this Section 5.03 shall otherwise apply to the Specified Parties with respect to such Directed Opportunity, including, without limitation, the ability of the Specified Parties to pursue or acquire such Directed Opportunity or to direct such Directed Opportunity to another Person.

Freedom to Pursue Opportunities. The parties expressly acknowledge and agree that: (i) To the Onex Stockholdersfullest extent permitted by applicable law, the Carlyle StockholdersCompany hereby, on behalf of itself and its subsidiaries, renounces any interest, duty or expectancy of the Company and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any Sponsor Party even if the opportunity is one that the Company 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 Onex Director who is an employee of any Onex Stockholder or an employee of an Affiliate of any Onex Stockholder, each Carlyle Director who is an employee of any Carlyle Stockholder or an employee of an Affiliate of any Carlyle Stockholder and their respective Affiliates shall have the right to, and Sponsor Party 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 its Subsidiaries, including those deemed to be competing with the Company or its Subsidiaries; and (ii) in the event that any Onex Stockholder, any Carlyle Stockholder, any such Onex Director, any such Carlyle Director or any of their respective Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company or its Subsidiaries and such Stockholder, Director or any other Person, the Stockholder, Director or Affiliate thereof, as applicable, shall have no duty (contractual or otherwise) to communicate or present offer such corporate business opportunity to the Company or its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement and to the contraryfullest extent permitted by applicable law, shall not be liable to the Company or any of its Subsidiaries or their respective Affiliates or stockholders subsidiaries for breach of any duty (contractual fiduciary or other duty, as a Director or otherwise) , by reason of the fact that such Stockholder, Director or any Affiliate thereof, as applicable, directly or indirectly, Sponsor Party pursues or acquires such opportunity for itselfbusiness opportunity, directs such business opportunity to another PersonPerson or fails to present such business opportunity, or does not present information regarding such opportunity business opportunity, to the Company or its Subsidiaries unlesssubsidiaries. Notwithstanding the foregoing, in the case of any such Person a Sponsor Party who is a Director, such Director and who is offered a business opportunity is expressly offered to such Director in writing solely in his or her capacity as a DirectorDirector (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Company, provided, however, that all of the protections of this Section 5.3 shall otherwise apply to the Sponsor Party with respect to such Directed Opportunity, including, without limitation, the ability of the Sponsor Party to pursue or acquire such Directed Opportunity or to direct such Directed Opportunity to another Person.

Freedom to Pursue Opportunities. The parties expressly acknowledge and agree that: (i) the Onex Stockholders, the Carlyle Stockholders, Investors and each Onex Director who is an employee of any Onex Stockholder or an employee of an Affiliate of any Onex Stockholder, each Carlyle Director who is an employee of any Carlyle Stockholder or an employee of an Affiliate of any Carlyle Stockholder and their respective Affiliates LGP Investor Designee 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 its Subsidiaries, including those deemed to be competing with the Company or its Subsidiaries; Subsidiaries; and (ii) in the event that any Onex Stockholder, any Carlyle StockholderInvestor, any such Onex Director, any such Carlyle Director LGP Investor Designee or any of their respective Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company or its Subsidiaries Subsidiaries, on the one hand, and such StockholderInvestor, Director or any other Person, the Stockholder, Director LGP Investor Designee or Affiliate thereof, as applicable, on the other hand, such Investor, LGP Investor Designee or Affiliate shall have no duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement to the contrary, shall not be liable to the Company or its Subsidiaries or their respective Affiliates or stockholders equityholders for breach of any duty (contractual or otherwise) by reason of the fact that such StockholderInvestor, Director LGP Investor Designee or any Affiliate thereofAffiliate, as applicable, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or its Subsidiaries Subsidiaries, unless, in the case of any such Person who is a Directorthis clause (ii), such corporate opportunity is expressly offered to such Director a LGP Investor Designee in writing solely to such LGP Investor Designee in his or her capacity as a Directordirector on the Board; provided that the foregoing shall not excuse an LGP Investor Designee from notifying the Board of, and recusing him or herself from, any matter before the Board with respect to which such LGP Investor Designee knows he or she has a material conflict of interest of the type contemplated in clause (i) or (ii).

Freedom to Pursue Opportunities. The parties expressly acknowledge and agree that: (ia) To the Onex Stockholdersfullest extent permitted by applicable law, the Carlyle StockholdersCompany, each Onex Director who is an employee on behalf of itself and its subsidiaries, renounces any Onex Stockholder interest, duty or an employee expectancy of an Affiliate of any Onex Stockholder, each Carlyle Director who is an employee of any Carlyle Stockholder or an employee of an Affiliate of any Carlyle Stockholder and their respective Affiliates 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 and its subsidiaries in, or its Subsidiariesin being offered an opportunity to participate in, including those deemed business opportunities that are from time to be competing with time presented to any of either the Company Electrum Parties or its Subsidiaries; and (ii) in the event that any Onex Stockholder, any Carlyle Stockholder, any such Onex Director, any such Carlyle Director Liberty Party or any of their respective officers, directors, agents, shareholders, members, partners, Affiliates acquires knowledge of and subsidiaries (other than the Company and its subsidiaries) (each, a potential transaction or matter “Specified Party”), even if the opportunity is one that may be a corporate opportunity for both the Company or its Subsidiaries 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 Stockholder, Director or any other Person, the Stockholder, Director or Affiliate thereof, as applicable, Specified Party shall have no duty (contractual or otherwise) to communicate or present offer such corporate business opportunity to the Company or its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement to the contraryfullest extent permitted by applicable law, shall not be liable to the Company or any of its Subsidiaries or their respective Affiliates or stockholders subsidiaries for breach of any duty (contractual fiduciary or other duty, as a Director or officer or otherwise) , by reason of the fact that such Stockholder, Director or any Affiliate thereof, as applicable, directly or indirectly, Specified Party pursues or acquires such opportunity for itselfbusiness opportunity, directs such business opportunity to another PersonPerson or fails to present such business opportunity, or does not present information regarding such opportunity business opportunity, to the Company or its Subsidiaries unlesssubsidiaries. Notwithstanding the foregoing, in the case of any such Person a Specified Party who is a Director, such Director or officer of the Company and who is offered a business opportunity is expressly offered to such Director in writing solely in his or her capacity as a DirectorDirector or officer of the Company (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Company, provided, however, that all of the protections of this Section 5.03 shall otherwise apply to the Specified Parties with respect to such Directed Opportunity, including, without limitation, the ability of the Specified Parties to pursue or acquire such Directed Opportunity or to direct such Directed Opportunity to another Person.

Freedom to Pursue Opportunities. The parties expressly acknowledge and agree that: (i) To the Onex Stockholdersfullest extent permitted by applicable law, the Carlyle StockholdersCompany hereby, on behalf of itself and its subsidiaries, renounces any interest, duty or expectancy of the Company and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any Investor Party even if the opportunity is one that the Company 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 Onex Director who is an employee of any Onex Stockholder or an employee of an Affiliate of any Onex Stockholder, each Carlyle Director who is an employee of any Carlyle Stockholder or an employee of an Affiliate of any Carlyle Stockholder and their respective Affiliates shall have the right to, and Investor Party 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 its Subsidiaries, including those deemed to be competing with the Company or its Subsidiaries; and (ii) in the event that any Onex Stockholder, any Carlyle Stockholder, any such Onex Director, any such Carlyle Director or any of their respective Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company or its Subsidiaries and such Stockholder, Director or any other Person, the Stockholder, Director or Affiliate thereof, as applicable, shall have no duty (contractual or otherwise) to communicate or present offer such corporate business opportunity to the Company or its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement and to the contraryfullest extent permitted by applicable law, shall not be liable to the Company or any of its Subsidiaries or their respective Affiliates or stockholders subsidiaries for breach of any duty (contractual fiduciary or other duty, as a Director or otherwise) , by reason of the fact that such Stockholder, Director or any Affiliate thereof, as applicable, directly or indirectly, Investor Party pursues or acquires such opportunity for itselfbusiness opportunity, directs such business opportunity to another PersonPerson or fails to present such business opportunity, or does not present information regarding such opportunity business opportunity, to the Company or its Subsidiaries unlesssubsidiaries. Notwithstanding the foregoing, in the case of any such Person an Investor Director who is offered a Director, such business opportunity is expressly offered to such Director in writing solely in his or her capacity as a DirectorDirector (a “Directed Opportunity”) shall be obligated to communicate such Directed Opportunity to the Company, provided, however, that all of the protections of this Section 3.2 shall otherwise apply to the Investor Party with respect to such Directed Opportunity, including, without limitation, the ability of the Investor Party to pursue or acquire such Directed Opportunity or to direct such Directed Opportunity to another Person.