Fill and Sign the Defining a Joint Ventures Scope of Business Gibson Dunn Form

-1- 6.10[3] Clauses Relating to Venture Opportunities, Competition Example 1 (General Partnership or Limited Liability Company Venture):Section 1.01. Covenant Not to Compete. Each Venturer and its Affiliates is prohibited from directly or indirectly engaging in or possessing an interest in an activity described in Section ____ [describing scope of Venture's business] in [geographic area] during the Term of the Venture and for a period of three years following the termination of the Venture for any reason; provided, however, that a Venturer or any of its affiliates may directly or indirectly own stock or other equity in a business which engages in such an activity, if such stock or other equity represents less than 5% of the voting power of all stock or equity in such business, and if such stock or other equity is listed on a national stock exchange or is subject to quotation on the National Association of Securities Dealers Automated Quotation System. Example 2 (Fifty-Fifty Corporate Joint Venture; Right of First Refusal with Respect to Competing Business Opportunities): Section 1.01. Competing Business Opportunities. If either stockholder or affiliate thereof has the opportunity to engage in any other [competing] business or to purchase or invest in any other [competing] business interests (except for those businesses or investments already engaged in or made or contracted for as of the date hereof), it shall promptly offer a right of first refusal to the other stockholder to invest in or engage in any such business interest or investment on an equal basis and on equal terms. The other stockholder shall respond to such offer within thirty (30) days. Example 3 (Limited Liability Company; Limited Covenant not to Compete): Section 1.01. Other Activities of Members or Affiliates; Additional Joint Investments. Any Member or any Affiliate thereof may have other business interests or may engage in other business ventures of any nature or description whatsoever, whether currently existing or hereafter created, and may compete, directly or indirectly, with the business of the LLC. No Member or Affiliate thereof shall incur any liability to the LLC as a result of such Member's or Affiliate's pursuit of such other business interests, ventures and competitive activity, and neither the LLC nor the other Members shall have any right to participate in such other business ventures or to receive or share in any income or profits derived therefrom. The foregoing is subject to the exception that [describe limits]. Example 4 (Corporate Charter Provisions; Waiver of Rights Under Corporate Opportunity Doctrine): Article X:Section 1.01. Corporate Opportunities Generally. In anticipation that the Venture, Venturer A and Venturer B 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 (i) the benefits to be derived by the Venture through its continued contractual, corporate and business relations with Venturer A and Venturer B (including the services of employees, officers, directors and -2- stockholders of Venturers A and B as employees, officers, directors and stockholders of the Venture) and (ii) the difficulties faced by any officer, director or stockholder who desires fully to satisfy such employee's, officer's, director's or stockholder's fiduciary duties, in determining the full scope of such duties in any particular situation, the provisions of this Article X are set forth to regulate, define and guide (x) the conduct of certain affairs of the Venture as they may involve Venturer A and its employees, officers, directors and stockholders, and Venturer B and its employees, officers, directors and stockholders, and (y) the powers, rights, duties and liabilities of the Venture and its employees, officers, directors and stockholders in connection therewith.Section 2.01. Opportunities of Venturer A and Venturer B. Except as Venturers A and B may otherwise agree in writing, (a) Venturer A shall not have a duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Venture; (b) Venturer B shall not have a duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Venture; and (c) neither Venturer A, Venturer B nor any employee, officer, director or stockholder of Venturer A or Venturer B shall be liable to the Venture or its stockholders for breach of any fiduciary duty by reason of any such activities of Venturer A or Venturer B. In the event that Venturer A acquires knowledge of a potential transaction or matter that may be a corporate opportunity for Venturer A or the Venture, or in the event that Venturer B acquires knowledge of a potential transaction or matter that may be a corporate opportunity for Venturer B or the Venture, neither Venturer A nor Venturer B shall have a duty to communicate or offer such corporate opportunity to the Venture or be liable to the Venture or its stockholders for breach of any fiduciary duty as a stockholder of the Venture by reason of the fact that (i) Venturer A pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or does not communicate information regarding, or offer, such corporate opportunity to the Venture, or (ii) Venturer B pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another person or entity, or does not communicate information regarding, or offer, such corporate opportunity to the Venture. Section 3.01. Opportunities Found by Employees, Officers, Directors or Stockholders. In the event that an employee, officer, director or stockholder of the Venture who is also an employee, officer or director of Venturer A or Venturer B acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Venture, Venturer A and Venturer B (whether such potential transaction or matter is proposed by a third party or is conceived of by such director, officer or employee of the Venture), such person or entity shall be entitled to offer such corporate opportunity to the Venture, Venturer A or Venturer B as such person or entity deems appropriate under the circumstances in its sole discretion, and no such person or entity shall be liable to the Venture or its stockholders for breach of any fiduciary duty or duty of loyalty or failure to act in (or not opposed to) the best interests of the Venture or the derivation of any improper personal benefit by reason of the fact that (i) such person or entity offered such corporate opportunity to Venturer A (rather than the Venture) or did not communicate information regarding such corporate opportunity to the Venture, (ii) such person or entity offered such corporate opportunity to Venturer B (rather than the Venture) or did not communicate information regarding such corporate opportunity to the Venture, (iii) Venturer A pursues or acquires such corporate opportunity for itself or directs such corporate opportunity to another person or does not communicate information regarding such corporate opportunity to the Venture, or (iv) Venturer B -3- pursues or acquires such corporate opportunity for itself or directs such corporate opportunity to another person or entity or does not communicate information regarding such corporate opportunity to the Venture.Section 4.01. Future Stockholders Bound. Any person or entity purchasing or otherwise acquiring any interest in any shares of capital stock of the Venture shall be deemed to have notice of and to have consented to the provisions of this Article X. Section 5.01. Certain Definitions. For purposes of this Article X only, (i) the term "Venture" shall mean the Venture and all corporations, partnerships, joint ventures, associations and other entities in which the Venture beneficially owns (directly or indirectly) fifty (50) percent or more of the outstanding voting stock, voting power or similar voting interests, (ii) the term "Venturer A" shall mean Venturer A and all corporations, partnerships, joint ventures, associations and other entities (other than the Venture, defined in accordance with clause (i) of this Section 5.01) in which Venturer A beneficially owns (directly or indirectly) fifty (50) percent or more of the outstanding voting stock, voting power or similar voting interests, and (iii) the term "Venturer B" shall mean Venturer B and all corporations, partnerships, joint ventures, associations and other entities (other than the Venture, defined in accordance with clause (i) of this Section 5.01) in which Venturer B beneficially owns (directly or indirectly) fifty (50) percent or more of the outstanding voting stock, voting power or similar voting interests. Section 6.01. Expiration of Article. Notwithstanding anything in this Certificate of Incorporation to the contrary, the foregoing provisions of this Article X shall expire on the date that Venturer A ceases to own beneficially common stock representing at least [___ %] of the number of outstanding shares of common stock of the Venture and no person who is a director or officer of the Venture is also a director or officer of Venturer A and that Venturer B ceases to own beneficially common stock representing at least [___ %] of the number of outstanding shares of common stock of the Venture and no person who is a director or officer of the Venture is also a director or officer of Venturer B. Neither the alteration, amendment, change or repeal of any provision of this Article X nor the adoption of any provision of this Certificate of Incorporation inconsistent with any provision of this Article X shall eliminate or reduce the effect of this Article X in respect of any matter that would have given rise to a cause of action, suit or claim that would have accrued or arisen under Article X, prior to such alteration, amendment, repeal or adoption. Example 5 (Partnership Agreement Provisions): Section 1.01. Partnership Opportunities. If any Partner or any of its Controlled Affiliates [as defined] proposes to engage in any Restricted Activity [define scope of businesses in which venture may engage], then such Partner shall first offer to the Partnership the opportunity for the Partnership to engage in such Restricted Activity, in lieu of such Partner and its Controlled Affiliates (whether by acquiring such interest itself or itself providing, offering, promoting or branding such services) (the "Offer"), which Offer shall be made in writing and shall set forth in reasonable detail the nature and scope of the activity proposed to be engaged in, including all material terms of any proposed acquisition. The Partnership, for itself or any of its Subsidiaries (by [Required Majority Vote of the Partnership Board] or [the Executive Committee by Majority Vote] pursuant to Section [___]), shall have thirty (30) days from receipt of the Offer to accept or reject it. -4- If the Partnership does not accept the offer within such thirty (30) day period, it shall be deemed to have rejected the Offer, and the offering Partner or its Controlled Affiliates shall be permitted to engage in such Restricted Activity on terms no more favorable to such Partner or its Controlled Affiliates than those described in the Offer. If the Partnership accepts the Offer, the offering Partner and its Controlled Affiliates shall not pursue the opportunity to engage in such Restricted Activity; provided, however, that if the Partnership does not within a commercially reasonable period of time after such acceptance take reasonable steps to pursue such opportunity, other than as a result of a violation of this Partnership Agreement or wrongful acts or bad faith on the part of the offering Partner or its Controlled Affiliates, then the offering Partner or its Controlled Affiliates shall be permitted to pursue such opportunity on terms no more favorable to the offering Partner or its Controlled Affiliates than the terms of the Offer. If the offering Partner or its Controlled Affiliates do not take reasonable steps to pursue such opportunity contemplated by the Offer within a reasonable period of time after acquiring the right to do so in accordance with the foregoing provisions (including, in the case of an acquisition, by entering into a definitive agreement (subject solely to obtaining the requisite regulatory approvals and other customary closing conditions) with respect to such acquisition within [one hundred twenty (120)] days thereafter), then it shall lose its right to pursue such opportunity to the Partnership in accordance with, and shall otherwise comply with, this Section 1.01.Notwithstanding the foregoing, a Partner shall not be permitted to present an Offer to the Partnership (or, except for Restricted Activities relating to an Offer previously rejected by the Partnership, otherwise engage in any Restricted Activity in reliance on this Section 1.01) in which the Partnership is otherwise offering, promoting or branding [type of business] (or in which the Partnership plans to offer, promote or brand [type of business] without a [Unanimous Vote of the Partnership Board] or [the Executive Committee by Unanimous Vote] pursuant to Section [___]. Section 2.01. Covenants Against Competition.(a) Each Partner agrees that for so long as it holds any Partnership Interest and until the [first] anniversary of the first date on which such Partner no longer holds any Partnership Interest, neither such Partner nor any of its Controlled Affiliates shall, without the prior written consent of the [Required Majority Vote of the Partnership Board] or [the Executive Committee by Majority Vote] (excluding the competing Partner), directly or indirectly own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as a partner, principal, agent, representative or consultant with, or use or permit its name or the name of any of its Controlled Affiliates to be used in connection with, any business or enterprise engaged in any Restricted Activity. (b) Nothing contained in this Section 2.01 shall prohibit or otherwise restrict a Partner (or its Controlled Affiliates) from [list unrestricted/permitted activities]: (c) Notwithstanding anything to the contrary contained herein, if any Partner (or its Controlled Affiliates) shall inadvertently violate the provisions of this Section 2.01, the Inadvertent Violation (as defined below) shall not be a breach of this Partnership Agreement; provided that if the Partnership or any Partner shall become aware of such inadvertent violation, it shall promptly give written notice thereof to the Partnership or the Partner, as the case may be, and thereafter the -5- Partnership and such Partner shall negotiate in good faith to reach a written agreement with respect to a cure for such Inadvertent Violation; provided further, that unless otherwise agreed by the Partnership and such Partner in such a written agreement, such Partner shall (or shall cause its Controlled Affiliates to), within one year (or such longer period as may be consented to by the Partnership, which consent may not be unreasonably withheld) following the delivery of such notice, subject to any regulatory constraints (provided that the Partner subject to such constraint has used its reasonable efforts to seek to obtain a waiver thereof or other relief therefrom), either (i) sell the Restricted Business or all of the Equity Securities [as defined] of the Person [as defined] engaged in such Restricted Business [as defined] owned by such Partner (or its Controlled Affiliates) to the Partnership (subject to its consent) at a price equal to its (or its Controlled Affiliates') unrecovered costs with respect to such Restricted Business, as reasonably demonstrated to the Partnership by such Partner, plus interest on such cost at a rate equal to the Prime Rate [as defined] (compounded quarterly) accruing from the date of the acquisition of such Restricted Business or such Equity Securities to the date of such sale to the Partnership, or (ii) dispose of the Restricted Business or all the Equity Securities of the Person engaged in such Restricted Business owned by such Partner (or its Controlled Affiliates), as the case may be, to an unaffiliated third party. For the purposes of this paragraph (c), an "inadvertent violation" shall include, without limitation, (x) any violation that results solely from the actions of any Person other than such Partner (or its Controlled Affiliates) and (y) any action taken in good faith and not intended to permanently circumvent the provisions of this Section 2.01, including any acquisition of any interest in any Person that owns a Restricted Business.The parties acknowledge that the existing businesses of the Partnership will likely evolve in ways that cannot be fully anticipated at this time. In the event such evolution results in any actual or potential violation by any party of any covenant of this Section 2.01, the Partnership and the affected party shall discuss in good faith and reasonably resolve such issue, taking into account the legitimate interests of the Partnership and such affected party. Section 3.01. Indemnification. The Partnership shall indemnify and hold harmless the Partners (and any of their Controlled Affiliates) who may incur liability in connection with the allocation of business opportunities set forth in Section 1.01 above, against all liabilities and expenses (including amounts paid in satisfaction of judgments, in compromise, as fines and penalties, and as counsel fees) reasonably incurred by him in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which he may be involved or with which he may be threatened, while a Partner or serving in such other capacity or thereafter, by reason of its being or having been a Partner, or by serving in such other capacity, except with respect to any matter which constitutes willful misconduct, bad faith, gross negligence or reckless disregard or criminal intent. Section 4.01. Exculpation. The Partnership and any Partner (and any of its Controlled Affiliates) shall not be liable to any Partner or the Partnership for any liabilities in connection with the allocation of business opportunities as set forth in Section 1.01 above, for mistakes of judgment or for action or inaction of such Partner (or any of its Controlled Affiliates) or the Partnership, unless such action or inaction constitutes willful misconduct, bad faith, gross negligence or reckless disregard of its duties. Each Partner may (on its own behalf or on the behalf of its Controlled Affiliates) consult with counsel, accountants and other experts with respect to the Partnership -6- affairs and such Partner (or any of its Controlled Affiliates) shall be fully protected and justified in any action or inaction which is taken in accordance with the advice or opinion of such counsel, accountants or other experts with respect to the Partnership affairs and such Partner (or any of its Controlled Affiliates) shall be fully protected and justified in any action or inaction which is taken in accordance with the advice or opinion of such counsel, accountants or other experts, provided that they shall have been selected with reasonable care. Notwithstanding the foregoing to the contrary, the provisions of this Section 4.01 shall not be construed so as to relieve a Partner (and any of its Controlled Affiliates) or the Partnership of any liability to the extent that such liability may not be waived, modified or limited under applicable law, but shall be construed so as to effectuate the provisions of this Section 4.01 to the fullest extent permitted by law.