Common use of No Restrictions on Post-Closing Competitive Activities; Corporate Opportunities; Non-Solicitation Clause in Contracts

No Restrictions on Post-Closing Competitive Activities; Corporate Opportunities; Non-Solicitation. (a) Each of the Parties agrees that this Agreement shall not include any non-competition or other similar restrictive arrangements with respect to the range of business activities that may be conducted, or investments that may be made, by the Groups. Accordingly, each of the Parties acknowledges and agrees that nothing set forth in this Agreement shall be construed to create any explicit or implied restriction or other limitation on the ability of any Group to engage in any business or other activity that overlaps or competes with the business of the other Group. Except as expressly provided herein, or in the Ancillary Agreements, each Group shall have the right to, and shall have no duty to abstain from exercising such right to, (i) engage or invest, directly or indirectly, in the same, similar or related business activities or lines of business as the other Group, (ii) make investments in the same or similar types of investments as the other Group, (iii) do business with any client, customer, vendor or lessor of any of the other Group or (iv) subject to Section 7.3(e), employ or otherwise engage any officer, director or employee of the other Group. Neither Party or Group, nor any officer or director thereof, shall be liable to the other Party or Group or its stockholders for breach of any fiduciary duty by reason of any such activities of such Party or Group or of any such Person’s participation therein. (b) Except as expressly provided herein, or in the Ancillary Agreements, and except as Inland American and each other member of the Inland American Group, on the one hand, and Xenia and each other member of the Xenia Group, on the other hand, may otherwise agree in writing, the Parties hereby acknowledge and agree that if any Person that is a member of a Group, including any officer or director thereof, acquires knowledge of a potential transaction or matter that may be a corporate opportunity for either or both Groups, the other Group shall not have an interest in, or expectation that, such opportunity be offered to it or that it be offered an opportunity to participate therein, and any such interest, expectation, offer or opportunity to participate, and any other interest or expectation otherwise due to such Group with respect to such opportunity, is hereby renounced by such Group. Accordingly, subject to Section 7.3(c) and except as expressly provided herein, or in the Ancillary Agreements, (i) neither Group nor any officer or director thereof will be under any obligation to present, communicate or offer any such opportunity to the other Group and (ii) each Group has the right to hold any such opportunity for its own account, or to direct, recommend, sell, assign or otherwise transfer such opportunity to any Person or Persons other than the other Group, and, to the fullest extent permitted by Law, neither Group nor the officers or directors thereof shall have or be under any duty to the other Group and shall not be liable to the other Group for any breach or alleged breach thereof or for any derivation of personal economic gain by reason of the fact that such Group or any of its officers or directors pursues or acquires the opportunity for itself, or directs, recommends, sells, assigns or otherwise transfers the opportunity to another Person, or such Group and its officers or directors does not present, offer or communicate information regarding the opportunity to the other Group. (c) Except as Inland American and each other member of the Inland American Group, on the one hand, and Xenia and each other member of the Xenia Group, on the other hand, may otherwise agree in writing, the Parties hereby acknowledge and agree that in the event that a director or officer of either Group who is also a director or officer of the other Group acquires knowledge of a potential transaction or matter that may be a corporate opportunity or is offered an opportunity that would otherwise constitute a corporate opportunity, if (i) such Person acts in good faith and (ii) such knowledge of such potential transaction or matter was not obtained solely in connection with, or such opportunity was not offered to such Person solely in, such Person’s capacity as director or officer of either Group, then (A) such director or officer, to the fullest extent permitted by Law, (1) shall be deemed to have fully satisfied and fulfilled such Person’s duty to each Group with respect to such opportunity, (2) shall not have or be under any duty to either Group and shall not be liable to either Group for any breach or alleged breach thereof by reason of the fact that the other Group pursues or acquires the opportunity for itself, or directs, recommends, sells, assigns or otherwise transfers the opportunity to another Person, or either Group or such director or officer does not present, offer or communicate information regarding the opportunity to the other Group and (3) shall not have any duty to the other Group or any duty not to derive any personal benefit therefrom and shall not be liable to the other Group for any breach or alleged breach thereof and (B) such potential transaction or matter that may be a corporate opportunity, or the opportunity that would otherwise constitute a corporate opportunity, shall belong to the applicable Group (and not to the other Group). (d) For the purposes of this Section 7.3, “corporate opportunities” of a Group shall include business opportunities that such Group is financially able to undertake, that are, by their nature, in a line of business of such Group, are of practical advantage to it and are ones in which any member of the Group has an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of a Person or any of its officers or directors will be brought into conflict with that of such Group.

No Restrictions on Post-Closing Competitive Activities; Corporate Opportunities; Non-Solicitation. (a) Each of the Parties agrees that this Agreement shall not include any non-competition or other similar restrictive arrangements with respect to the range of business activities that may be conducted, or investments that may be made, by the Groups. Accordingly, each of the Parties acknowledges and agrees that nothing set forth in this Agreement shall be construed to create any explicit or implied restriction or other limitation on the ability of any Group to engage in any business or other activity that overlaps or competes with the business of the other Group. Except as expressly provided herein, or in the Ancillary Agreements, each Group shall have the right to, and shall have no duty to abstain from exercising such right to, (i) engage or invest, directly or indirectly, in the same, similar or related business activities or lines of business as the other Group, (ii) make investments in the same or similar types of investments as the other Group, (iii) do business with any client, customer, vendor or lessor of any of the other Group or (iv) subject to Section 7.3(e7.3(d), employ or otherwise engage any officer, director or employee of the other Group. Neither Party or Group, nor any officer or director thereof, shall be liable to the other Party or Group or its stockholders for breach of any fiduciary duty by reason of any such activities of such Party or Group or of any such Person’s participation therein. (b) Except as expressly provided herein, or in the Ancillary Agreements, and except as Inland American InvenTrust and each other member of the Inland American InvenTrust Group, on the one hand, and Xenia Highlands and each other member of the Xenia Highlands Group, on the other hand, may otherwise agree in writing, the Parties hereby acknowledge and agree that if any Person that is a member of a Group, including any officer or director thereof, acquires knowledge of a potential transaction or matter that may be a corporate opportunity for either or both Groups, the other Group shall not have an interest in, or expectation that, such opportunity be offered to it or that it be offered an opportunity to participate therein, and any such interest, expectation, offer or opportunity to participate, and any other interest or expectation otherwise due to such Group with respect to such opportunity, is hereby renounced by such Group. Accordingly, subject to Section 7.3(c) and except as expressly provided herein, or in the Ancillary Agreements, (i) neither Group nor any officer or director thereof will be under any obligation to present, communicate or offer any such opportunity to the other Group and (ii) each Group has the right to hold any such opportunity for its own account, or to direct, recommend, sell, assign or otherwise transfer such opportunity to any Person or Persons other than the other Group, and, to the fullest extent permitted by Law, neither Group nor the officers or directors thereof shall have or be under any duty to the other Group and shall not be liable to the other Group for any breach or alleged breach thereof or for any derivation of personal economic gain by reason of the fact that such Group or any of its officers or directors pursues or acquires the opportunity for itself, or directs, recommends, sells, assigns or otherwise transfers the opportunity to another Person, or such Group and its officers or directors does not present, offer or communicate information regarding the opportunity to the other Group. (c) Except as Inland American and each other member of the Inland American Group, on the one hand, and Xenia and each other member of the Xenia Group, on the other hand, may otherwise agree in writing, the Parties hereby acknowledge and agree that in the event that a director or officer of either Group who is also a director or officer of the other Group acquires knowledge of a potential transaction or matter that may be a corporate opportunity or is offered an opportunity that would otherwise constitute a corporate opportunity, if (i) such Person acts in good faith and (ii) such knowledge of such potential transaction or matter was not obtained solely in connection with, or such opportunity was not offered to such Person solely in, such Person’s capacity as director or officer of either Group, then (A) such director or officer, to the fullest extent permitted by Law, (1) shall be deemed to have fully satisfied and fulfilled such Person’s duty to each Group with respect to such opportunity, (2) shall not have or be under any duty to either Group and shall not be liable to either Group for any breach or alleged breach thereof by reason of the fact that the other Group pursues or acquires the opportunity for itself, or directs, recommends, sells, assigns or otherwise transfers the opportunity to another Person, or either Group or such director or officer does not present, offer or communicate information regarding the opportunity to the other Group and (3) shall not have any duty to the other Group or any duty not to derive any personal benefit therefrom and shall not be liable to the other Group for any breach or alleged breach thereof and (B) such potential transaction or matter that may be a corporate opportunity, or the opportunity that would otherwise constitute a corporate opportunity, shall belong to the applicable Group (and not to the other Group). (d) For the purposes of this Section 7.3, “corporate opportunities” of a Group shall include business opportunities that such Group is financially able to undertake, that are, by their nature, in a line of business of such Group, are of practical advantage to it and are ones in which any member of the Group has an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of a Person or any of its officers or directors will be brought into conflict with that of such Group.