Common use of Future Ventures and Conflicts of Interest Clause in Contracts

Future Ventures and Conflicts of Interest. (a) During the period from the date hereof until the fifth anniversary of the commissioning of the Facility, prior to either Member (or any of either Member’s Affiliates) initiating, soliciting, or taking any action to facilitate any inquiries with respect to any potential commercial venture involving the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof in the United States through the use of a hydrotreating plus isomerization process (a “Venture”), the initiating, soliciting or facilitating Member (the “Venturer”) agrees to notify the other Member (the “Venturee”) of its intention to take such action and to furnish the Venturee with information regarding such Venture or the same information furnished to or proposed to be furnished to, or furnished by, any third party with respect to such Venture. Following receipt of such notice, the Venturee shall have 20 Business Days to agree to participate with the Venturer in such Venture. Such Venture between such Members shall be on terms and conditions, and relative percentages of equity interest, substantially similar to this Agreement and all agreements ancillary hereto (including the Raw Material Supply Agreement and each Valero Agreement). If the Venturee determines not to participate in such proposed Venture or fails to respond in such time period, the Venturer may pursue such Venture alone or with any third party, as the case may be. The Members expressly acknowledge and agree that any damages to the other Member or the Company as a result of a failure of the Darling Member or the Valero Member to observe the terms of this Section 5.4(a) will not include (i) any costs incurred by or allocated to the Company or a Member with respect to time spent by employees of the Company or a Member or any of their respective Affiliates or (ii) any treble, exemplary or punitive damages or any other damages that do not flow directly from such failure. For the avoidance of doubt, a Venture shall include, and the requirements of this provision shall apply to, the construction or entering into an arrangement to construct a facility on or otherwise adjacent to the St. C▇▇▇▇▇▇ Refinery for the purpose of engaging in the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof through the use of a hydrotreating plus isomerization process. (b) The Members acknowledge and agree that the Members, Independent Manager, Managers and Member Officers, and their respective Affiliates, are engaged in activities other than the Business, and that the Members, Independent Manager and Managers and such Member Officers and their respective Affiliates shall not be expected or required to devote their full-time to the management of the Company. Except as expressly provided in Section 5.4(a) or as may be expressly restricted in any written agreement between the Company and such party, (i) the relationship between the Company and any Member, Independent Manager, Manager or Member Officer (or Affiliate thereof) shall not in any way act as a restraint on the other present or future business activities or investments of any Member, Independent Manager, Manager or Member Officer or any of their respective Affiliates, and (ii) a Member, Independent Manager, Manager or Member Officer (and their respective Affiliates) may engage in any business or activity and neither the Company nor any Member shall have any right, title or interest in or to any such business or entity. Without limiting the generality of the foregoing and except as set forth in Section 5.4(a) or required by Applicable Law or under a written agreement, none of the Members, Managers or Member Officers (or their respective Affiliates) are obligated and bound to offer and present to the Company any business opportunity (an “Opportunity”) presented or offered to a Member, Manager or Member Officer (or any of their Affiliates) as a prerequisite to the pursuit, acquisition of or investment in such Opportunity by any such Member, Manager or Member Officer (or an Affiliate thereof), directly or indirectly, for his, her or its account or the account of others. Any such business, activity or Opportunity may be undertaken with or without notice to or participation therein by the Company or the Members. Each Member and the Company hereby waives any right or claim that such Member or the Company may have against the other Member, any Manager or Member Officer (or Affiliate thereof) with respect to any such business, activity or Opportunity or the income or profits therefrom. (c) The Members expressly acknowledge and agree that none of the Members or Managers shall have any liability to the Company or any Member in connection with, arising from or related to the pursuit of any Opportunity or Venture other than as set forth in Section 5.4(a). The Members agree that to the maximum extent permitted by the Delaware Act, no Member (as a Member or otherwise) or Manager shall have any fiduciary, quasi-fiduciary or other duty to the Company or any Member or owe any duty of loyalty to the Company, except as expressly provided in this Agreement or as may be required by the Delaware Act. Subject to the Delaware Act and this Agreement, each Member (as a Member or otherwise) may act in its sole self-interest and each Manager may act in the sole self-interest of its respective designating Member. A Member shall be deemed to have complied with its duty of good faith and fair dealing with respect to the Company, if applicable, so long as it has complied with this Agreement. (d) The duties, obligations and other responsibilities of each Member to the Company and the other Member (whether express or implied, created by this Agreement, by Applicable Law or otherwise) are the duties, obligations and responsibilities of the individual Members and not of their Affiliates. The existence of the Company does not create any duties, obligations or other responsibilities of any Member’s Affiliate to any other Member. To the extent that this Agreement requires any Affiliate of any Member to take any action or refrain from taking any action, such Member agrees to use its best efforts to cause such Affiliate to take such action or refrain from taking such action, as applicable. Notwithstanding anything to the contrary in this Agreement, no Member shall take any action indirectly through any of its Affiliates or otherwise that such Member is prohibited from taking directly herein.

Future Ventures and Conflicts of Interest. (a) During the period from the date hereof until the fifth anniversary of the commissioning of the FacilityPort ▇▇▇▇▇▇ Facility Commencement Date, prior to either Member (or any of either Member’s Affiliates) initiating, soliciting, or taking any action to facilitate any inquiries with respect to any potential commercial venture involving the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof in the United States through the use of a hydrotreating plus isomerization process (a “Venture”), the initiating, soliciting or facilitating Member (the “Venturer”) agrees to notify the other Member (the “Venturee”) of its intention to take such action and to furnish the Venturee with information regarding such Venture or the same information furnished to or proposed to be furnished to, or furnished by, any third party with respect to such Venture. Following receipt of such notice, the Venturee shall have 20 Business Days to agree to participate with the Venturer in such Venture. Such Venture between such Members shall be on terms and conditions, and relative percentages of equity interest, substantially similar to this Agreement and all relevant agreements ancillary hereto (including including, where relevant in the context of the applicable Venture, the Raw Material Supply Agreement and each Valero Support Agreement). If the Venturee determines not to participate in such proposed Venture or fails to respond in such time period, the Venturer may pursue such Venture alone or with any third party, as the case may be. The Members expressly acknowledge and agree that any damages to the other Member or the Company as a result of a failure of the Darling Member or the Valero Member to observe the terms of this Section 5.4(a) will not include (i) any costs incurred by or allocated to the Company or a Member with respect to time spent by employees of the Company or a Member or any of their respective Affiliates or (ii) any treble, exemplary or punitive damages or any other damages that do not flow directly from such failure. For the avoidance of doubt, a Venture shall include, and the requirements of this provision shall apply to, the construction or entering into an arrangement to construct a facility on or otherwise adjacent to either the St. C▇▇▇▇▇▇▇ Refinery or the Port ▇▇▇▇▇▇ Refinery for the purpose of engaging in the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof through the use of a hydrotreating plus isomerization process. (b) The Members acknowledge and agree that the Members, Independent Manager, Managers and Member Officers, and their respective Affiliates, are engaged in activities other than the Business, and that the Members, Independent Manager and Managers and such Member Officers and their respective Affiliates shall not be expected or required to devote their full-time to the management of the Company. Except as expressly provided in Section 5.4(a) or as may be expressly restricted in any written agreement between the Company and such party, (i) the relationship between the Company and any Member, Independent Manager, Manager or Member Officer (or Affiliate thereof) shall not in any way act as a restraint on the other present or future business activities or investments of any Member, Independent Manager, Manager or Member Officer or any of their respective Affiliates, and (ii) a Member, Independent Manager, Manager or Member Officer (and their respective Affiliates) may engage in any business or activity and neither the Company nor any Member shall have any right, title or interest in or to any such business or entity. Without limiting the generality of the foregoing and except as set forth in Section 5.4(a) or required by Applicable Law or under a written agreement, none of the Members, Managers or Member Officers (or their respective Affiliates) are obligated and bound to offer and present to the Company any business opportunity (an “Opportunity”) presented or offered to a Member, Manager or Member Officer (or any of their Affiliates) as a prerequisite to the pursuit, acquisition of or investment in such Opportunity by any such Member, Manager or Member Officer (or an Affiliate thereof), directly or indirectly, for his, her or its account or the account of others. Any such business, activity or Opportunity may be undertaken with or without notice to or participation therein by the Company or the Members. Each Member and the Company hereby waives any right or claim that such Member or the Company may have against the other Member, any Manager or Member Officer (or Affiliate thereof) with respect to any such business, activity or Opportunity or the income or profits therefrom. (c) The Members expressly acknowledge and agree that none of the Members or Managers shall have any liability to the Company or any Member in connection with, arising from or related to the pursuit of any Opportunity or Venture other than as set forth in Section 5.4(a). The Members agree that to the maximum extent permitted by the Delaware Act, no Member (as a Member or otherwise) or Manager shall have any fiduciary, quasi-fiduciary or other duty to the Company or any Member or owe any duty of loyalty to the Company, except as expressly provided in this Agreement Agreement, including Section 12.1 hereof, or as may be required by the Delaware Act. Subject to the Delaware Act and this Agreement, each Member (as a Member or otherwise) may act in its sole self-interest and each Manager may act in the sole self-interest of its respective designating Member. A Member shall be deemed to have complied with its duty of good faith and fair dealing with respect to the Company, if applicable, so long as it has complied with this Agreement. (d) The duties, obligations and other responsibilities of each Member to the Company and the other Member (whether express or implied, created by this Agreement, by Applicable Law or otherwise) are the duties, obligations and responsibilities of the individual Members and not of their Affiliates. The existence of the Company does not create any duties, obligations or other responsibilities of any Member’s Affiliate to any other Member. To the extent that this Agreement requires any Affiliate of any Member to take any action or refrain from taking any action, such Member agrees to use its best efforts to cause such Affiliate to take such action or refrain from taking such action, as applicable. Notwithstanding anything to the contrary in this Agreement, no Member shall take any action indirectly through any of its Affiliates or otherwise that such Member is prohibited from taking directly herein.

Future Ventures and Conflicts of Interest. (a) During the period from the date hereof until the fifth anniversary of the commissioning of the FacilityNew Facility Commencement Date, prior to either Member (or any of either Member’s Affiliates) initiating, soliciting, or taking any action to facilitate any inquiries with respect to any potential commercial venture involving the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof in the United States through the use of a hydrotreating plus isomerization process (a “Venture”), the initiating, soliciting or facilitating Member (the “Venturer”) agrees to notify the other Member (the “Venturee”) of its intention to take such action and to furnish the Venturee with information regarding such Venture or the same information furnished to or proposed to be furnished to, or furnished by, any third party with respect to such Venture. Following receipt of such notice, the Venturee shall have 20 Business Days to agree to participate with the Venturer in such Venture. Such Venture between such Members shall be on terms and conditions, and relative percentages of equity interest, substantially similar to this Agreement and all relevant agreements ancillary hereto (including including, where relevant in the context of the applicable Venture, the Raw Material Supply Agreement and each Valero Agreement). If the Venturee determines not to participate in such proposed Venture or fails to respond in such time period, the Venturer may pursue such Venture alone or with any third party, as the case may be. The Members expressly acknowledge and agree that any damages to the other Member or the Company as a result of a failure of the Darling Member or the Valero Member to observe the terms of this Section 5.4(a) will not include (i) any costs incurred by or allocated to the Company or a Member with respect to time spent by employees of the Company or a Member or any of their respective Affiliates or (ii) any treble, exemplary or punitive damages or any other damages that do not flow directly from such failure. For the avoidance of doubt, a Venture shall include, and the requirements of this provision shall apply to, the construction or entering into an arrangement to construct a facility on or otherwise adjacent to the St. C▇▇▇▇▇▇▇ Refinery for the purpose of engaging in the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof through the use of a hydrotreating plus isomerization process. (b) The Members acknowledge and agree that the Members, Independent Manager, Managers and Member Officers, and their respective Affiliates, are engaged in activities other than the Business, and that the Members, Independent Manager and Managers and such Member Officers and their respective Affiliates shall not be expected or required to devote their full-time to the management of the Company. Except as expressly provided in Section 5.4(a) or as may be expressly restricted in any written agreement between the Company and such party, (i) the relationship between the Company and any Member, Independent Manager, Manager or Member Officer (or Affiliate thereof) shall not in any way act as a restraint on the other present or future business activities or investments of any Member, Independent Manager, Manager or Member Officer or any of their respective Affiliates, and (ii) a Member, Independent Manager, Manager or Member Officer (and their respective Affiliates) may engage in any business or activity and neither the Company nor any Member shall have any right, title or interest in or to any such business or entity. Without limiting the generality of the foregoing and except as set forth in Section 5.4(a) or required by Applicable Law or under a written agreement, none of the Members, Managers or Member Officers (or their respective Affiliates) are obligated and bound to offer and present to the Company any business opportunity (an “Opportunity”) presented or offered to a Member, Manager or Member Officer (or any of their Affiliates) as a prerequisite to the pursuit, acquisition of or investment in such Opportunity by any such Member, Manager or Member Officer (or an Affiliate thereof), directly or indirectly, for his, her or its account or the account of others. Any such business, activity or Opportunity may be undertaken with or without notice to or participation therein by the Company or the Members. Each Member and the Company hereby waives any right or claim that such Member or the Company may have against the other Member, any Manager or Member Officer (or Affiliate thereof) with respect to any such business, activity or Opportunity or the income or profits therefrom. (c) The Members expressly acknowledge and agree that none of the Members or Managers shall have any liability to the Company or any Member in connection with, arising from or related to the pursuit of any Opportunity or Venture other than as set forth in Section 5.4(a). The Members agree that to the maximum extent permitted by the Delaware Act, no Member (as a Member or otherwise) or Manager shall have any fiduciary, quasi-fiduciary or other duty to the Company or any Member or owe any duty of loyalty to the Company, except as expressly provided in this Agreement Agreement, including Section 12.1 hereof, or as may be required by the Delaware Act. Subject to the Delaware Act and this Agreement, each Member (as a Member or otherwise) may act in its sole self-interest and each Manager may act in the sole self-interest of its respective designating Member. A Member shall be deemed to have complied with its duty of good faith and fair dealing with respect to the Company, if applicable, so long as it has complied with this Agreement. (d) The duties, obligations and other responsibilities of each Member to the Company and the other Member (whether express or implied, created by this Agreement, by Applicable Law or otherwise) are the duties, obligations and responsibilities of the individual Members and not of their Affiliates. The existence of the Company does not create any duties, obligations or other responsibilities of any Member’s Affiliate to any other Member. To the extent that this Agreement requires any Affiliate of any Member to take any action or refrain from taking any action, such Member agrees to use its best efforts to cause such Affiliate to take such action or refrain from taking such action, as applicable. Notwithstanding anything to the contrary in this Agreement, no Member shall take any action indirectly through any of its Affiliates or otherwise that such Member is prohibited from taking directly herein.

Future Ventures and Conflicts of Interest. (a) During the period from the date hereof until the fifth anniversary of the commissioning of the FacilityPort ▇▇▇▇▇▇ Facility Commencement Date, prior to either Member (or any of either Member’s Affiliates) initiating, soliciting, or taking any action to facilitate any inquiries with respect to any potential commercial venture involving the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof in the United States through the use of a hydrotreating plus isomerization process (a “Venture”), the initiating, soliciting or facilitating Member (the “Venturer”) agrees to notify the other Member (the “Venturee”) of its intention to take such action and to furnish the Venturee with information regarding such Venture or the same information furnished to or proposed to be furnished to, or furnished by, any third party with respect to such Venture. Following receipt of such notice, the Venturee shall have 20 Business Days to agree to participate with the Venturer in such Venture. Such Venture between such Members shall be on terms and conditions, and relative percentages of equity interest, substantially similar to this Agreement and all relevant agreements ancillary hereto (including including, where relevant in the context of the applicable Venture, the Raw Material Supply Agreement and each Valero Support Agreement). If the Venturee determines not to participate in such proposed Venture or fails to respond in such time period, the Venturer may pursue such Venture alone or with any third party, as the case may be. The Members expressly acknowledge and agree that any damages to the other Member or the Company as a result of a failure of the Darling Member or the Valero Member to observe the terms of this Section 5.4(a) will not include (i) any costs incurred by or allocated to the Company or a Member with respect to time spent by employees of the Company or a Member or any of their respective Affiliates or (ii) any treble, exemplary or punitive damages or any other damages that do not flow directly from such failure. For the avoidance of doubt, a Venture shall include, and the requirements of this provision shall apply to, the construction or entering into an arrangement to construct a facility on or otherwise adjacent to either the St. C▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Port ▇▇▇▇▇▇ Refinery for the purpose of engaging in the business of using animal fats and used cooking oils to produce biomass-based diesel and byproducts thereof through the use of a hydrotreating plus isomerization process. (b) The Members acknowledge and agree that the Members, Independent Manager, Managers and Member Officers, and their respective Affiliates, are engaged in activities other than the Business, and that the Members, Independent Manager and Managers and such Member Officers and their respective Affiliates shall not be expected or required to devote their full-time to the management of the Company. Except as expressly provided in Section 5.4(a) or as may be expressly restricted in any written agreement between the Company and such party, (i) the relationship between the Company and any Member, Independent Manager, Manager or Member Officer (or Affiliate thereof) shall not in any way act as a restraint on the other present or future business activities or investments of any Member, Independent Manager, Manager or Member Officer or any of their respective Affiliates, and (ii) a Member, Independent Manager, Manager or Member Officer (and their respective Affiliates) may engage in any business or activity and neither the Company nor any Member shall have any right, title or interest in or to any such business or entity. Without limiting the generality of the foregoing and except as set forth in Section 5.4(a) or required by Applicable Law or under a written agreement, none of the Members, Managers or Member Officers (or their respective Affiliates) are obligated and bound to offer and present to the Company any business opportunity (an “Opportunity”) presented or offered to a Member, Manager or Member Officer (or any of their Affiliates) as a prerequisite to the pursuit, acquisition of or investment in such Opportunity by any such Member, Manager or Member Officer (or an Affiliate thereof), directly or indirectly, for his, her or its account or the account of others. Any such business, activity or Opportunity may be undertaken with or without notice to or participation therein by the Company or the Members. Each Member and the Company hereby waives any right or claim that such Member or the Company may have against the other Member, any Manager or Member Officer (or Affiliate thereof) with respect to any such business, activity or Opportunity or the income or profits therefrom. (c) The Members expressly acknowledge and agree that none of the Members or Managers shall have any liability to the Company or any Member in connection with, arising from or related to the pursuit of any Opportunity or Venture other than as set forth in Section 5.4(a). The Members agree that to the maximum extent permitted by the Delaware Act, no Member (as a Member or otherwise) or Manager shall have any fiduciary, quasi-fiduciary or other duty to the Company or any Member or owe any duty of loyalty to the Company, except as expressly provided in this Agreement Agreement, including Section 12.1 hereof, or as may be required by the Delaware Act. Subject to the Delaware Act and this Agreement, each Member (as a Member or otherwise) may act in its sole self-interest and each Manager may act in the sole self-interest of its respective designating Member. A Member shall be deemed to have complied with its duty of good faith and fair dealing with respect to the Company, if applicable, so long as it has complied with this Agreement. (d) The duties, obligations and other responsibilities of each Member to the Company and the other Member (whether express or implied, created by this Agreement, by Applicable Law or otherwise) are the duties, obligations and responsibilities of the individual Members and not of their Affiliates. The existence of the Company does not create any duties, obligations or other responsibilities of any Member’s Affiliate to any other Member. To the extent that this Agreement requires any Affiliate of any Member to take any action or refrain from taking any action, such Member agrees to use its best efforts to cause such Affiliate to take such action or refrain from taking such action, as applicable. Notwithstanding anything to the contrary in this Agreement, no Member shall take any action indirectly through any of its Affiliates or otherwise that such Member is prohibited from taking directly herein.