Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefrom, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries. (b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries. (c) Each Stockholder (for itself and on behalf of the Company) hereby, to the fullest extent permitted by applicable law: (i) confirms that none of the Sponsors has any duty to any other Stockholder or to the Company, Sabre or any of its subsidiaries other than the specific covenants and agreements set forth in this Agreement; (ii) acknowledges and agrees that, (A) in the event of any conflict of interest between the Company, Sabre or any of its subsidiaries, on the one hand, and any Sponsor, on the other hand, such Sponsor (or its respective Sponsor Directors acting in his or her capacity as a director) may act in its best interest and (B) no Sponsor (or its respective Sponsor Directors acting in his or her capacity as a director), shall be obligated (1) to reveal to the Company, Sabre or its subsidiaries confidential information belonging to or relating to the business of such person or (2) to recommend or take any action in its capacity as such Stockholder or director, as the case may be, that prefers the interest of the Company, Sabre or its subsidiaries over the interest of such person; and (iii) waives any claim or cause of action against any Sponsor, any Sponsor Director and any officer, employee, agent or Affiliate of any such person that may from time to time arise in respect of a breach by any such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii). (d) Each Stockholder agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives based upon the breach or nonperformance by such person of this Agreement or other agreement to which such person is a party. (e) The provisions of this Section 5.05, to the extent that they restrict the duties and liabilities of a Sponsor or Sponsor Director otherwise existing at law or in equity, are agreed by the Stockholders to replace such other duties and liabilities of such Sponsors or Sponsor Director to the fullest extent permitted by applicable law.
Appears in 4 contracts
Samples: Stockholders' Agreement, Stockholders’ Agreement (Sabre Corp), Stockholders’ Agreement (Sabre Corp)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor The Company (for itself and their respective Affiliates may engage in or possess an interest in any other business venture on behalf of any nature or description (including any business venture that is the same or similar to that each of the Companyits Subsidiaries and controlled Affiliates), on its own accounthereby expressly acknowledges and agrees, or subject to any express agreement that may from time to time be in partnership witheffect, or as an employeethat, officersubject to Section 4.2(b), director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefrom, and the pursuit of any such venture. Each such person may (i) engage inCovered Person may, and shall have no duty to refrain from engaging not to:
(i) invest in, separate businesses carry on and conduct, whether directly, or activities from as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Company or any of its subsidiaries, including businesses Subsidiaries or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, controlled Affiliates;
(ii) do business with any potential client, customer, vendor or actual customer or supplier lessor of any of the Company or any of its subsidiaries and Subsidiaries or controlled Affiliates; or
(iii) employ make investments in any kind of property in which the Company or otherwise engage any officer its Subsidiaries or employee of the Company, Sabre or any of its subsidiariescontrolled Affiliates may make investments.
(b) None To the fullest extent permitted by Section 122(17) of the Sponsor Directors nor DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company (for itself and on behalf of each of its Subsidiaries and controlled Affiliates) hereby renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company or its stockholders for breach of any fiduciary duty solely by reason of such Person’s participation in any such business or investment. The Company shall pay in advance any expenses incurred in defense of such claim as provided in this provision. In the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person and (y) the Company or any of their respective Affiliates its Subsidiaries or controlled Affiliates, the Covered Person shall not have any obligation duty to present any business offer or communicate information regarding such corporate opportunity to the Company or any of its subsidiariesSubsidiaries or controlled Affiliates. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, even if formed or organized as a corporation in the State of Delaware, the Company (for itself and on behalf of each of its Subsidiaries and controlled Affiliates) hereby renounces any interest or expectancy in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing stating that such offer is being provided to such Covered Person solely in his or her capacity as a director of the Company and such corporate opportunity is one intended solely for the benefit of the Company, and waives any claim against each Covered Person and shall indemnify a Covered Person against any claim, that such Covered Person is liable to the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder stockholders for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, duty solely by reason of the fact that such person Covered Person (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such business opportunity, directs such business corporate opportunity to another Person or fails to present such business opportunity, or (C) does not communicate information regarding such business opportunity, corporate opportunity to the Company; provided, Sabre or however, in each such case, that any of its subsidiaries.
(c) Each Stockholder (for itself and on behalf of the Company) hereby, corporate opportunity which is expressly offered to the fullest extent permitted by applicable law:
(i) confirms a Covered Person in writing stating that none of the Sponsors has any duty such offer is being provided to any other Stockholder or to the Company, Sabre or any of its subsidiaries other than the specific covenants and agreements set forth in this Agreement;
(ii) acknowledges and agrees that, (A) in the event of any conflict of interest between the Company, Sabre or any of its subsidiaries, on the one hand, and any Sponsor, on the other hand, such Sponsor (or its respective Sponsor Directors acting Covered Person solely in his or her capacity as a director) may act in its best interest and (B) no Sponsor (an officer or its respective Sponsor Directors acting in his or her capacity as a director), director of the Company shall be obligated (1) to reveal belong to the Company. The Company shall pay in advance any expenses incurred in defense of such claim as provided in this provision, Sabre or its subsidiaries confidential information belonging to or relating except to the business extent that a Covered Person is determined by a final, non-appealable order of such person a Delaware court having competent jurisdiction (or (2any other judgment which is not appealed in the applicable time) to recommend or take have breached this Section 4.2(b), in which case any action in its capacity as such Stockholder or director, as the case may be, that prefers the interest of advanced expenses shall be promptly reimbursed to the Company, Sabre or its subsidiaries over the interest of such person; and
(iii) waives any claim or cause of action against any Sponsor, any Sponsor Director and any officer, employee, agent or Affiliate of any such person that may from time to time arise in respect of a breach by any such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii).
(d) Each Stockholder agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives based upon the breach or nonperformance by such person of this Agreement or other agreement to which such person is a party.
(ec) The provisions of this Section 5.054.2, to the extent that they restrict the duties and liabilities of a Sponsor the Stockholders or Sponsor any MSD Director Nominee or SLP Director Nominee otherwise existing at law or in equity, are agreed by the Company and each of the Stockholders to replace such other duties and liabilities of such Sponsors the Stockholders or Sponsor any MSD Director Nominee or SLP Director Nominee to the fullest extent permitted by applicable law.
Appears in 3 contracts
Samples: Stockholders Agreement (Vmware, Inc.), Separation and Distribution Agreement (Vmware, Inc.), Separation and Distribution Agreement (Dell Technologies Inc.)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefromSpecified Subsidiaries, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each each Stockholder (for itself and on behalf of the Company) herebyhereby expressly acknowledges and agrees, to the fullest extent permitted by applicable lawlaw and subject to any express agreement that may from time to time be in effect, any Covered Person may, and shall have no duty not to:
(i) confirms that none invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Sponsors has any duty to any other Stockholder same or to similar lines of business as the Company, Sabre Company or any of its subsidiaries other than the specific covenants Subsidiaries (including for this purpose VMware and agreements set forth in this Agreementits subsidiaries);
(ii) acknowledges and agrees thatdo business with any client, customer, vendor or lessor of any of the Company or its Affiliates; and/or
(Aiii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and the Specified Subsidiaries hereby renounce any interest or expectancy of the Company or such Specified Subsidiary, as the case may be, to participate in any business or investments of any conflict of interest between Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of its subsidiaries, on such Person’s participation in any such business or investment. The Company and the one hand, and Specified Subsidiaries shall pay in advance any Sponsor, on expenses incurred in defense of such claim as provided in this provision. In the other hand, such Sponsor event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (or its respective Sponsor Directors acting x) the Covered Person in his or her capacity as a director) may act in its best interest partner, member, employee, officer or director of the MSD Partners Stockholders or the SLP Stockholders, as applicable, and (By) no Sponsor (the Company or its respective Sponsor Directors acting any Specified Subsidiary, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or any Specified Subsidiary. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and each Specified Subsidiary hereby renounces any interest or expectancy of the Company or such Specified Subsidiary in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as an officer or director of the Company, any Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) and waives any claim against each Covered Person and shall indemnify a director)Covered Person against any claim, shall be obligated (1) to reveal that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its subsidiaries confidential own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another Person or (C) does not communicate information belonging to or relating regarding such corporate opportunity to the business of Company or such person Specified Subsidiary; provided, however, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or (2) to recommend or take any action in its her capacity as an officer or director of the Company, a Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) shall belong to the Company or such Stockholder or directorSpecified Subsidiary, as the case may be, that prefers . The Company and the interest of the Company, Sabre or its subsidiaries over the interest Specified Subsidiaries shall pay in advance any expenses incurred in defense of such person; and
claim as provided in this provision, except to the extent that a Covered Person is determined by a final, non-appealable order of a Delaware court having competent jurisdiction (iiior any other judgment which is not appealed in the applicable time) waives any claim or cause of action against any Sponsorto have breached this Section 6.2(a), any Sponsor Director and any officer, employee, agent or Affiliate of in which case any such person that may from time advanced expenses shall be promptly reimbursed to time arise in respect of a breach by any the Company or such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii)Specified Subsidiary, as applicable.
(db) Each Stockholder The Company, the Specified Subsidiaries and each of the Stockholders agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 6.2 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives the Sponsor Stockholders based upon the breach or nonperformance by such person Sponsor Stockholder of this Agreement or any other agreement to which such person Person is a party.
(ec) The provisions of this Section 5.056.2, to the extent that they restrict the duties and liabilities of a the Sponsor Stockholders or any Sponsor Director otherwise existing at law or in equity, are agreed by the Company, the Specified Subsidiaries and each of the Stockholders to replace such other duties and liabilities of such Sponsors the Sponsor Stockholders or any Sponsor Director to the fullest extent permitted by applicable law.
Appears in 3 contracts
Samples: Sponsor Stockholders Agreement, Sponsor Stockholders Agreement (Dell Technologies Inc), Sponsor Stockholders Agreement (Denali Holding Inc.)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefromSpecified Subsidiaries, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each each Stockholder (for itself and on behalf of the Company) herebyhereby expressly acknowledges and agrees, to the fullest extent permitted by applicable lawlaw and subject to any express agreement that may from time to time be in effect, any Covered Person may, and shall have no duty not to:
(i) confirms that none invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Sponsors has any duty to any other Stockholder same or to similar lines of business as the Company, Sabre Company or any of its subsidiaries other than the specific covenants Subsidiaries (including for this purpose VMware and agreements set forth in this Agreementits subsidiaries);
(ii) acknowledges and agrees thatdo business with any client, customer, vendor or lessor of any of the Company or its Affiliates; and/or
(Aiii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and the Specified Subsidiaries hereby renounce any interest or expectancy of the Company or such Specified Subsidiary, as the case may be, to participate in any business or investments of any conflict of interest between Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of its subsidiaries, on such Person’s participation in any such business or investment. The Company and the one hand, and Specified Subsidiaries shall pay in advance any Sponsor, on expenses incurred in defense of such claim as provided in this provision. In the other hand, such Sponsor event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (or its respective Sponsor Directors acting x) the Covered Person in his or her capacity as a director) may act in its best interest partner, member, employee, officer or director of the SLP Stockholders and (By) no Sponsor (the Company or its respective Sponsor Directors acting any Specified Subsidiary, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or any Specified Subsidiary. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and each Specified Subsidiary hereby renounce any interest or expectancy of the Company or such Specified Subsidiary in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as an officer or director of the Company, any Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) and waives any claim against each Covered Person and shall indemnify a director)Covered Person against any claim, shall be obligated (1) to reveal that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its subsidiaries confidential own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another Person or (C) does not communicate information belonging to or relating regarding such corporate opportunity to the business of Company or such person Specified Subsidiary; provided, however, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or (2) to recommend or take any action in its her capacity as an officer or director of the Company, a Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) shall belong to the Company or such Stockholder or directorSpecified Subsidiary, as the case may be, that prefers . The Company and the interest of the Company, Sabre or its subsidiaries over the interest Specified Subsidiaries shall pay in advance any expenses incurred in defense of such person; and
claim as provided in this provision, except to the extent that a Covered Person is determined by a final, non-appealable order of a Delaware court having competent jurisdiction (iiior any other judgment which is not appealed in the applicable time) waives any claim or cause of action against any Sponsorto have breached this Section 5.2(a), any Sponsor Director and any officer, employee, agent or Affiliate of in which case any such person that may from time advanced expenses shall be promptly reimbursed to time arise in respect of a breach by any the Company or such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii)Specified Subsidiary, as applicable.
(db) Each Stockholder agrees The Company, the Specified Subsidiaries and each of the Stockholders agree that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 5.2 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives the SLP Stockholders based upon the breach or nonperformance by such person SLP Stockholder of this Agreement or any other agreement to which such person Person is a party.
(ec) The provisions of this Section 5.055.2, to the extent that they restrict the duties and liabilities of a Sponsor the SLP Stockholders or Sponsor any SLP Director Nominee otherwise existing at law or in equity, are agreed by the Company, the Specified Subsidiaries and each of the Stockholders to replace such other duties and liabilities of such Sponsors the SLP Stockholders or Sponsor any SLP Director Nominee to the fullest extent permitted by applicable law.
Appears in 2 contracts
Samples: Stockholders Agreement (Dell Technologies Inc), Stockholders Agreement (Dell Technologies Inc)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefromSpecified Subsidiaries, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each each Stockholder (for itself and on behalf of the Company) herebyhereby expressly acknowledges and agrees, to the fullest extent permitted by applicable lawlaw and subject to any express agreement that may from time to time be in effect, any Covered Person may, and shall have no duty not to:
(i) confirms that none invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Sponsors has any duty to any other Stockholder same or to similar lines of business as the Company, Sabre Company or any of its subsidiaries other than the specific covenants Subsidiaries (including for this purpose VMware and agreements set forth in this Agreementits subsidiaries);
(ii) acknowledges and agrees thatdo business with any client, customer, vendor or lessor of any of the Company or its Affiliates; and/or
(Aiii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and the Specified Subsidiaries hereby renounce any interest or expectancy of the Company or such Specified Subsidiary, as the case may be, to participate in any business or investments of any conflict of interest between Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of its subsidiaries, on such Person’s participation in any such business or investment. The Company and the one hand, and Specified Subsidiaries shall pay in advance any Sponsor, on expenses incurred in defense of such claim as provided in this provision. In the other hand, such Sponsor event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (or its respective Sponsor Directors acting x) the Covered Person in his or her capacity as a director) may act in its best interest partner, member, employee, officer or director of the MSD Partners Stockholders and (By) no Sponsor (the Company or its respective Sponsor Directors acting any Specified Subsidiary, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or any Specified Subsidiary. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and each Specified Subsidiary hereby renounce any interest or expectancy of the Company or such Specified Subsidiary in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as an officer or director of the Company, any Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) and waives any claim against each Covered Person and shall indemnify a director)Covered Person against any claim, shall be obligated (1) to reveal that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its subsidiaries confidential own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another Person or (C) does not communicate information belonging to or relating regarding such corporate opportunity to the business of Company or such person Specified Subsidiary; provided, however, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or (2) to recommend or take any action in its her capacity as an officer or director of the Company, a Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) shall belong to the Company or such Stockholder or directorSpecified Subsidiary, as the case may be, that prefers . The Company and the interest of the Company, Sabre or its subsidiaries over the interest Specified Subsidiaries shall pay in advance any expenses incurred in defense of such person; and
claim as provided in this provision, except to the extent that a Covered Person is determined by a final, non-appealable order of a Delaware court having competent jurisdiction (iiior any other judgment which is not appealed in the applicable time) waives any claim or cause of action against any Sponsorto have breached this Section 5.2(a), any Sponsor Director and any officer, employee, agent or Affiliate of in which case any such person that may from time advanced expenses shall be promptly reimbursed to time arise in respect of a breach by any the Company or such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii)Specified Subsidiary, as applicable.
(db) Each Stockholder agrees The Company, the Specified Subsidiaries and each of the Stockholders agree that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 5.2 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives the MD Stockholders based upon the breach or nonperformance by such person MD Stockholder of this Agreement or any other agreement to which such person Person is a party.
(ec) The provisions of this Section 5.055.2, to the extent that they restrict the duties and liabilities of a Sponsor the MD Stockholders or Sponsor any MD Director Nominee otherwise existing at law or in equity, are agreed by the Company, the Specified Subsidiaries and each of the Stockholders to replace such other duties and liabilities of such Sponsors the MD Stockholders or Sponsor any MD Director Nominee to the fullest extent permitted by applicable law.
Appears in 2 contracts
Samples: Stockholders Agreement (Dell Technologies Inc), Stockholders Agreement (Dell Technologies Inc)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefromSpecified Subsidiaries, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each each Stockholder (for itself and on behalf of the Company) herebyhereby expressly acknowledges and agrees, to the fullest extent permitted by applicable lawlaw and subject to any express agreement that may from time to time be in effect, any Covered Person may, and shall have no duty not to:
(i) confirms that none invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Sponsors has any duty to any other Stockholder same or to similar lines of business as the Company, Sabre Company or any of its subsidiaries other than the specific covenants Subsidiaries (including for this purpose VMware and agreements set forth in this Agreementits subsidiaries);
(ii) acknowledges and agrees thatdo business with any client, customer, vendor or lessor of any of the Company or its Affiliates; and/or
(Aiii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and the Specified Subsidiaries hereby renounce any interest or expectancy of the Company or such Specified Subsidiary, as the case may be, to participate in any business or investments of any conflict of interest between Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of its subsidiaries, on such Person’s participation in any such business or investment. The Company and the one hand, and Specified Subsidiaries shall pay in advance any Sponsor, on expenses incurred in defense of such claim as provided in this provision. In the other hand, such Sponsor event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (or its respective Sponsor Directors acting x) the Covered Person in his or her capacity as a director) may act in its best interest partner, member, employee, officer or director of the MSD Partners Stockholders, and (By) no Sponsor (the Company or its respective Sponsor Directors acting any Specified Subsidiary, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or any Specified Subsidiary. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and each Specified Subsidiary hereby renounce any interest or expectancy of the Company or such Specified Subsidiary in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as an officer or director of the Company, any Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) and waives any claim against each Covered Person and shall indemnify a director)Covered Person against any claim, shall be obligated (1) to reveal that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its subsidiaries confidential own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another Person or (C) does not communicate information belonging to or relating regarding such corporate opportunity to the business of Company or such person Specified Subsidiary; provided, however, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or (2) to recommend or take any action in its her capacity as an officer or director of the Company, a Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) shall belong to the Company or such Stockholder or directorSpecified Subsidiary, as the case may be, that prefers . The Company and the interest of the Company, Sabre or its subsidiaries over the interest Specified Subsidiaries shall pay in advance any expenses incurred in defense of such person; and
claim as provided in this provision, except to the extent that a Covered Person is determined by a final, non-appealable order of a Delaware court having competent jurisdiction (iiior any other judgment which is not appealed in the applicable time) waives any claim or cause of action against any Sponsorto have breached this Section 5.2(a), any Sponsor Director and any officer, employee, agent or Affiliate of in which case any such person that may from time advanced expenses shall be promptly reimbursed to time arise in respect of a breach by any the Company or such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii)Specified Subsidiary, as applicable.
(db) Each Stockholder agrees The Company, the Specified Subsidiaries and each of the Stockholders agree that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 5.2 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives the MSD Partners Stockholders based upon the breach or nonperformance by such person MSD Partners Stockholder of this Agreement or any other agreement to which such person Person is a party.
(ec) The provisions of this Section 5.055.2, to the extent that they restrict the duties and liabilities of a Sponsor or Sponsor Director the MSD Partners Stockholder otherwise existing at law or in equity, are agreed by the Company, the Specified Subsidiaries and each of the Stockholders to replace such other duties and liabilities of such Sponsors or Sponsor Director the MSD Partners Stockholder to the fullest extent permitted by applicable law.
Appears in 2 contracts
Samples: Stockholders Agreement (Dell Technologies Inc), Stockholders Agreement (Dell Technologies Inc)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefromSpecified Subsidiaries, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each each Stockholder (for itself and on behalf of the Company) herebyhereby expressly acknowledges and agrees, to the fullest extent permitted by applicable lawlaw and subject to any express agreement that may from time to time be in effect, any Covered Person may, and shall have no duty not to:
(i) confirms that none invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Sponsors has any duty to any other Stockholder same or to similar lines of business as the Company, Sabre Company or any of its subsidiaries other than the specific covenants Subsidiaries (including for this purpose VMware and agreements set forth in this Agreementits subsidiaries);
(ii) acknowledges and agrees thatdo business with any client, customer, vendor or lessor of any of the Company or its Affiliates; and/or
(Aiii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and the Specified Subsidiaries hereby renounce any interest or expectancy of the Company or such Specified Subsidiary, as the case may be, to participate in any business or investments of any conflict of interest between Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of its subsidiaries, on such Person’s participation in any such business or investment. The Company and the one hand, and Specified Subsidiaries shall pay in advance any Sponsor, on expenses incurred in defense of such claim as provided in this provision. In the other hand, such Sponsor event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (or its respective Sponsor Directors acting x) the Covered Person in his or her capacity as a director) may act in its best interest partner, member, employee, officer or director of the MSD Partners Stockholders, and (By) no Sponsor (the Company or its respective Sponsor Directors acting any Specified Subsidiary, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or any Specified Subsidiary. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and each Specified Subsidiary hereby renounces any interest or expectancy of the Company or such Specified Subsidiary in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as an officer or director of the Company, any Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) and waives any claim against each Covered Person and shall indemnify a director)Covered Person against any claim, shall be obligated (1) to reveal that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its subsidiaries confidential own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another Person or (C) does not communicate information belonging to or relating regarding such corporate opportunity to the business of Company or such person Specified Subsidiary; provided, however, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or (2) to recommend or take any action in its her capacity as an officer or director of the Company, a Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) shall belong to the Company or such Stockholder or directorSpecified Subsidiary, as the case may be, that prefers . The Company and the interest of the Company, Sabre or its subsidiaries over the interest Specified Subsidiaries shall pay in advance any expenses incurred in defense of such person; and
claim as provided in this provision, except to the extent that a Covered Person is determined by a final, non-appealable order of a Delaware court having competent jurisdiction (iiior any other judgment which is not appealed in the applicable time) waives any claim or cause of action against any Sponsorto have breached this Section 5.2(a), any Sponsor Director and any officer, employee, agent or Affiliate of in which case any such person that may from time advanced expenses shall be promptly reimbursed to time arise in respect of a breach by any the Company or such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii)Specified Subsidiary, as applicable.
(db) Each Stockholder The Company, the Specified Subsidiaries and each of the Stockholders agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 5.2 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives the MSD Partners Stockholders based upon the breach or nonperformance by such person MSD Partners Stockholder of this Agreement or any other agreement to which such person Person is a party.
(ec) The provisions of this Section 5.055.2, to the extent that they restrict the duties and liabilities of a Sponsor or Sponsor Director the MSD Partners Stockholder otherwise existing at law or in equity, are agreed by the Company, the Specified Subsidiaries and each of the Stockholders to replace such other duties and liabilities of such Sponsors or Sponsor Director the MSD Partners Stockholder to the fullest extent permitted by applicable law.
Appears in 1 contract
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor Stockholder and each member, limited or general partner thereof, each member, limited or general partner of each such member, limited or general partner and each of their respective Affiliates Affiliates, officers, directors, shareholders, employees and agents (other than any person who is a full time officer or employee of the Company, Avaya or any of their subsidiaries) may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre Avaya, any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefrom, and the pursuit of any such venture. Each Stockholder and each member, limited or general partner thereof, each member, limited or general partner of each such member, limited or general partner and each of their Affiliates, officers, directors, shareholders, employees and agents may (other than any person may who is a full time officer or employee of the Company, Avaya or any of their subsidiaries) (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre Avaya or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre Avaya or any of its subsidiaries.
(b) None of the Sponsor Directors or Stockholders, nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so so, and no such person Person shall be liable to the Company, Sabre Avaya or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director Director, Stockholder or otherwise, by reason of the fact that such person 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, Sabre Avaya or any of its subsidiaries.
(c) Each Stockholder (for itself and on behalf of the Company) hereby, to the fullest extent permitted by applicable law:
(i) confirms that each Sponsor Director, in his or her capacity as a director, has only those duties to the Company, Avaya and their subsidiaries, and to the Stockholders, that are required under applicable law and which cannot be waived as a matter of law;
(ii) confirms that none of the Sponsors has any duty to any other Stockholder or to the Company, Sabre Avaya or any of its subsidiaries other than the specific covenants and agreements set forth in this Agreement;
(iiiii) acknowledges and agrees that, notwithstanding anything to the contrary in any other agreement or at law or in equity, that when any Stockholder takes any action under this Agreement to give or withhold its consent, such Stockholder shall, to the extent permitted by law, have no duty (Afiduciary or other) in to consider the event interests of any conflict of interest between the Company, Sabre Avaya or any of its their respective subsidiaries, on the one handother Stockholders except as otherwise expressly provided in this Agreement, and any Sponsor, on the other hand, such Sponsor (or its respective Sponsor Directors acting in his or her capacity as a director) may act in its best own interest and (B) no Sponsor (or its respective Sponsor Directors acting shall have only the duty to act in his or her capacity as a director), shall be obligated (1) to reveal to the Company, Sabre or its subsidiaries confidential information belonging to or relating to the business of such person or (2) to recommend or take any action in its capacity as such Stockholder or director, as the case may be, that prefers the interest of the Company, Sabre or its subsidiaries over the interest of such persongood faith; and
(iiiiv) waives any claim or cause of action against any Sponsor, any Sponsor Director and any officer, employee, agent or Affiliate of any such person Person that may from time to time arise in respect of a breach by any such person Person of any duty or obligation disclaimed under Section 5.05(c)(i5.03(c)(i) through (iiSection 5.03(c)(iii).
(d) Each Stockholder agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 5.03 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives based upon the breach or nonperformance by such person Person of this Agreement or other explicit written agreement to which such person Person is a party.
(e) The provisions of this Section 5.055.03, to the extent that they restrict the duties and liabilities of a Sponsor or Sponsor Director otherwise existing at law or in equity, are agreed by the Stockholders to replace such other duties and liabilities of such Sponsors or Sponsor Director to the fullest extent permitted by applicable law.
Appears in 1 contract
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefromSpecified Subsidiaries, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each each Stockholder (for itself and on behalf of the Company) herebyhereby expressly acknowledges and agrees, to the fullest extent permitted by applicable lawlaw and subject to any express agreement that may from time to time be in effect, any Covered Person may, and shall have no duty not to:
(i) confirms that none invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any Person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Sponsors has any duty to any other Stockholder same or to similar lines of business as the Company, Sabre Company or any of its subsidiaries other than the specific covenants Subsidiaries (including for this purpose VMware and agreements set forth in this Agreementits subsidiaries);
(ii) acknowledges and agrees thatdo business with any client, customer, vendor or lessor of any of the Company or its Affiliates; and/or
(Aiii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and the Specified Subsidiaries hereby renounce any interest or expectancy of the Company or such Specified Subsidiary, as the case may be, to participate in any business or investments of any conflict of interest between Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person and shall indemnify a Covered Person against any claim that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of its subsidiaries, on such Person’s participation in any such business or investment. The Company and the one hand, and Specified Subsidiaries shall pay in advance any Sponsor, on expenses incurred in defense of such claim as provided in this provision. In the other hand, such Sponsor event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (or its respective Sponsor Directors acting x) the Covered Person in his or her capacity as a director) may act in its best interest partner, member, employee, officer or director of the MSD Partners Stockholders or the SLP Stockholders, as applicable, and (By) no Sponsor (the Company or its respective Sponsor Directors acting any Specified Subsidiary, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or any Specified Subsidiary. To the fullest extent permitted by Section 122(17) of the DGCL or any other applicable law in the event that the applicable entity is not incorporated, formed or organized as a corporation in the State of Delaware, the Company and each Specified Subsidiary hereby renounces any interest or expectancy of the Company or such Specified Subsidiary in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as an officer or director of the Company, any Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) and waives any claim against each Covered Person and shall indemnify a director)Covered Person against any claim, shall be obligated (1) to reveal that such Covered Person is liable to the Company, Sabre any Specified Subsidiary or their respective stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its subsidiaries confidential own account or the account of any Affiliate or other Person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another Person or (C) does not communicate information belonging to or relating regarding such corporate opportunity to the business of Company or such person Specified Subsidiary; provided, however, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or (2) to recommend or take any action in its her capacity as an officer or director of the Company, a Specified Subsidiary or any of their respective Subsidiaries (including for this purpose VMware and its subsidiaries) shall belong to the Company or such Stockholder or directorSpecified Subsidiary, as the case may be, that prefers . The Company and the interest of the Company, Sabre or its subsidiaries over the interest Specified Subsidiaries shall pay in advance any expenses incurred in defense of such person; and
claim as provided in this provision, except to the extent that a Covered Person is determined by a final, non-appealable order of a Delaware court having competent jurisdiction (iiior any other judgment which is not appealed in the applicable time) waives any claim or cause of action against any Sponsorto have breached this Section 5.2(a), any Sponsor Director and any officer, employee, agent or Affiliate of in which case any such person that may from time advanced expenses shall be promptly reimbursed to time arise in respect of a breach by any the Company or such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii)Specified Subsidiary, as applicable.
(db) Each Stockholder The Company, the Specified Subsidiaries and each of the Stockholders agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 5.2 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives the Sponsor Stockholders based upon the breach or nonperformance by such person Sponsor Stockholder of this Agreement or any other agreement to which such person Person is a party.
(ec) The provisions of this Section 5.055.2, to the extent that they restrict the duties and liabilities of a the Sponsor Stockholders or any Sponsor Director otherwise existing at law or in equity, are agreed by the Company, the Specified Subsidiaries and each of the Stockholders to replace such other duties and liabilities of such Sponsors the Sponsor Stockholders or any Sponsor Director to the fullest extent permitted by applicable law.
Appears in 1 contract
Samples: Sponsor Stockholders Agreement (Dell Technologies Inc)
Other Businesses; Waiver of Certain Duties. (a) Each Sponsor and their respective Affiliates may engage in or possess an interest in any other business venture of any nature or description (including any business venture that is the same or similar to that of the Company), on its own account, or in partnership with, or as an employee, officer, director or stockholder of any other Person. None of the Company, Sabre any of its subsidiaries or any Stockholder shall have any rights in and to such other business ventures or the income or profits derived therefrom, and the pursuit of any such venture. Each such person may (i) engage in, and shall have no duty to refrain from engaging in, separate businesses or activities from the Company or any of its subsidiaries, including businesses or activities that are the same or similar to, or compete directly or indirectly with, those of the Company, Sabre or any of its subsidiaries, (ii) do business with any potential or actual customer or supplier of the Company or any of its subsidiaries and (iii) employ or otherwise engage any officer or employee of the Company, Sabre or any of its subsidiaries.
(b) None of the Sponsor Directors nor any of their respective Affiliates shall have any obligation to present any business opportunity to the Company or any of its subsidiaries, even if the opportunity is one that the Company or any of 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 no such person shall be liable to the Company, Sabre or any of its subsidiaries or any Stockholder for breach of any fiduciary or other duty, as a Stockholder, director Director or otherwise, by reason of the fact that such 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, Sabre or any of its subsidiaries.
(c) Each Stockholder (for itself and on behalf of the Company) hereby, to the fullest extent permitted by applicable law:
(i) confirms that none of the Sponsors has any duty to any other Stockholder or to the Company, Sabre or any of its subsidiaries other than the specific covenants and agreements set forth in this Agreement;
(ii) acknowledges and agrees that, (A) in the event of any conflict of interest between the Company, Sabre or any of its subsidiaries, on the one hand, and any Sponsor, on the other hand, such Sponsor (or its respective Sponsor Directors acting in his or her capacity as a director) may act in its best interest and (B) no Sponsor (or its respective Sponsor Directors acting in his or her capacity as a director), shall be obligated (1) to reveal to the Company, Sabre or its subsidiaries confidential information belonging to or relating to the business of such person or (2) to recommend or take any action in its capacity as such Stockholder or director, as the case may be, that prefers the interest of the Company, Sabre or its subsidiaries over the interest of such person; and
(iii) waives any claim or cause of action against any Sponsor, any Sponsor Director and any officer, employee, agent or Affiliate of any such person that may from time to time arise in respect of a breach by any such person of any duty or obligation disclaimed under Section 5.05(c)(i) through (ii).
(d) Each Stockholder agrees that the waivers, limitations, acknowledgments and agreements set forth in this Section 5.05 shall not apply to any alleged claim or cause of action against a Sponsor Director, Sponsor, any of a Sponsor’s Affiliates or any of their respective employees, officers, directors, agents or authorized representatives based upon the breach or nonperformance by such person of this Agreement or other agreement to which such person is a party.
(e) The provisions of this Section 5.05, to the extent that they restrict the duties and liabilities of a Sponsor or Sponsor Director otherwise existing at law or in equity, are agreed by the Stockholders to replace such other duties and liabilities of such Sponsors or Sponsor Director to the fullest extent permitted by applicable law.
Appears in 1 contract
Samples: Stockholders’ Agreement (Sabre Corp)
