THE MANAGER.
5.
DISCLAIMER AND LIMITATION OF LIABILITY;
OPPORTUNITIES.
(A)
DISCLAIMER; STANDARD OF CARE. THE MANAGER
DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN RESPECT
OF THE SERVICES TO BE PROVIDED BY THE MANAGER HEREUNDER. IN NO EVENT WILL THE
MANAGER OR ANY OF THE INDEMNITEES BE LIABLE TO THE COMPANY OR ANY OF ITS
AFFILIATES FOR ANY ACT, ALLEGED ACT, OMISSION OR ALLEGED OMISSION THAT DOES NOT
CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH MANAGER AS DETERMINED
BY A FINAL, NON-APPEALABLE DETERMINATION OF A COURT OF COMPETENT JURISDICTION.
4
(B)
FREEDOM TO PURSUE OPPORTUNITIES. IN
RECOGNITION THAT THE MANAGER AND ITS RESPECTIVE INDEMNITEES CURRENTLY HAVE, AND
WILL IN THE FUTURE HAVE OR WILL CONSIDER ACQUIRING, INVESTMENTS IN NUMEROUS
COMPANIES WITH RESPECT TO WHICH THE MANAGER OR ITS RESPECTIVE INDEMNITEES MAY
SERVE AS AN ADVISOR, A DIRECTOR OR IN SOME OTHER CAPACITY, AND IN RECOGNITION
THAT THE MANAGER AND ITS RESPECTIVE INDEMNITEES HAVE MYRIAD DUTIES TO VARIOUS
INVESTORS AND PARTNERS, AND IN ANTICIPATION THAT THE COMPANY, ON THE ONE HAND
AND THE MANAGER (OR ONE OR MORE AFFILIATES, ASSOCIATED INVESTMENT FUNDS OR
PORTFOLIO COMPANIES, OR CLIENTS OF THE MANAGERS), ON THE OTHER HAND, MAY ENGAGE
IN THE SAME OR SIMILAR ACTIVITIES OR LINES OF BUSINESS AND HAVE AN INTEREST IN
THE SAME AREAS OF CORPORATE OPPORTUNITIES, AND IN RECOGNITION OF THE BENEFITS TO
BE DERIVED BY THE COMPANY HEREUNDER AND IN RECOGNITION OF THE DIFFICULTIES THAT
MAY CONFRONT ANY ADVISOR WHO DESIRES AND ENDEAVORS FULLY TO SATISFY SUCH
ADVISOR'S DUTIES IN DETERMINING THE FULL SCOPE OF SUCH DUTIES IN ANY PARTICULAR
SITUATION, THE PROVISIONS OF THIS SECTION 5(B) ARE SET FORTH TO REGULATE, DEFINE
AND GUIDE THE CONDUCT OF CERTAIN AFFAIRS OF THE COMPANY AS THEY MAY INVOLVE THE
MANAGER. EXCEPT AS THE MANAGER MAY OTHERWISE AGREE IN WRITING AFTER THE DATE
HEREOF:
(I)
THE MANAGER AND ITS RESPECTIVE INDEMNITEES WILL HAVE THE RIGHT:
(A) TO DIRECTLY OR INDIRECTLY ENGAGE IN ANY BUSINESS (INCLUDING, WITHOUT
LIMITATION, ANY BUSINESS ACTIVITIES OR LINES OF BUSINESS THAT ARE THE SAME AS OR
SIMILAR TO THOSE PURSUED BY, OR COMPETITIVE WITH, THE COMPANY AND ITS
SUBSIDIARIES) OR INVEST, OWN OR DEAL IN SECURITIES OF ANY OTHER PERSON SO
ENGAGED IN ANY BUSINESS, (B) TO DIRECTLY OR INDIRECTLY DO BUSINESS WITH ANY
CLIENT OR CUSTOMER OF THE COMPANY AND ITS SUBSIDIARIES, (C) TO TAKE ANY OTHER
ACTION THAT THE MANAGER BELIEVES IN GOOD FAITH IS NECESSARY TO OR APPROPRIATE TO
FULFILL ITS OBLIGATIONS AS DESCRIBED IN THE FIRST SENTENCE OF THIS SECTION 5(B),
AND (D) NOT TO PRESENT POTENTIAL TRANSACTIONS, MATTERS OR BUSINESS OPPORTUNITIES
TO THE COMPANY OR ANY OF THEIR SUBSIDIARIES, AND TO PURSUE, DIRECTLY OR
INDIRECTLY, ANY SUCH OPPORTUNITY FOR ITSELF, AND TO DIRECT ANY SUCH OPPORTUNITY
TO ANOTHER PERSON.
(II)
THE MANAGER AND ITS RESPECTIVE INDEMNITEES WILL HAVE NO DUTY
(CONTRACTUAL OR OTHERWISE) TO COMMUNICATE OR PRESENT ANY CORPORATE OPPORTUNITIES
TO THE COMPANY OR ANY OF ITS AFFILIATES OR TO REFRAIN FROM ANY ACTIONS SPECIFIED
IN SECTION