Common use of Power and Authority of Board of Directors Clause in Contracts

Power and Authority of Board of Directors. (a) Except as otherwise expressly provided in this Agreement, the business and affairs of the Company shall be managed by or under the direction of a board of directors (the “Board of Directors”), including any committee thereof appointed pursuant to Section 6.13. As provided in Section 6.19, the Board of Directors shall have the power and authority to appoint Officers of the Company. The Board of Directors shall constitute the “manager” of the Company within the meaning of the Delaware Act. No Member, in its capacity as such, shall have any management power over the business and affairs of the Company or actual or apparent authority to enter into, execute or deliver contracts on behalf of, or to otherwise bind, the Company. In addition to the powers that now or hereafter can be granted to managers under the Delaware Act and to all other powers granted under any other provision of this Agreement, but subject to the Consent Rights, the Board of Directors shall have full power and authority to do, and to direct the Officers to do, all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Company Group, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following: (i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, and the incurring of any other obligations on the part of any Group Member; (ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of any Group Member; (iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of any Group Member, or the merger, conversion, consolidation or other combination of any Group Member with or into another Person (subject, however, to any prior approval of Members that may be required by this Agreement); (iv) the use of the assets of any Group Member (including cash on hand) for any purpose consistent with the terms of such Group Member’s constituent documents, including the financing of the conduct of the operations of the Company Group; the lending of funds to other Persons (including other Group Members); the repayment of obligations of the Company Group; and the making of capital contributions to any Member of the Company or any of its Subsidiaries; (v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of any Group Member under contractual arrangements to all or particular assets of such Group Member); (vi) the declaration and payment of distributions of cash or other assets of any Group Member to an equity owner of any Group Member; (vii) the selection and dismissal of Officers, employees, agents, outside attorneys, accountants, advisors, consultants and contractors of any Group Member and the determination of their compensation and other terms of employment or hiring, and the creation and operation of employee benefit plans, employee programs and employee practices; (viii) the maintenance of insurance for the benefit of the Company Group and the Indemnified Persons; (ix) the formation of, or acquisition or disposition of an interest in, and the contribution of property and the making of loans to, any limited or general partnership, joint venture, corporation, limited liability company or other entity or arrangement on behalf of any Group Member; (x) the control of any matters affecting the rights and obligations of the Company Group, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or remediation, and the incurring of legal expense and the settlement of claims and litigation; (xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by this Agreement and by Law; (xii) the entering into of listing agreements with any Securities Exchange with respect to any series of Preferred Units, and the delisting of any series of Preferred Units from, or requesting that trading be suspended in, any such Securities Exchange; (xiii) the issuance, sale or other disposition, and the purchase or other acquisition, of securities of Group Members or options, rights, warrants or appreciation rights relating to such securities; (xiv) the undertaking of any action in connection with the Company’s, or any other Group Member’s interest or participation in any Group Member; (xv) the filing of a bankruptcy petition with respect to any Group Member; and (xvi) the execution and delivery of agreements with Affiliates of the Company, Portfolio Companies or any Member to render services to a Group Member. (b) In exercising its authority under this Agreement, the Board of Directors may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (or not taken) by it. The Directors and the Company shall not have any liability to a Member for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Member in connection with such decisions except to the extent set forth in Section 6.16(a)(ii). (c) Notwithstanding any other provision of this Agreement, the Delaware Act or any other applicable Law, the Members and each other Person who may acquire an interest in Units hereby (i) approve, ratify and confirm the execution, delivery and performance by the parties thereto (whether such execution, delivery and performance has already occurred or may occur in the future) of the Exchange Agreement, the Tax Receivable Agreement, the other agreements described in the Registration Statement that are related to the transactions contemplated by the Registration Statement, and each of the Transaction Agreements (as defined in the Merger Agreement); (ii) agree that the Company is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement or Transaction Agreements without any further act, approval or vote of the Members, the other Persons who may acquire an interest in Units or any other Person; and (iii) agree that the execution, delivery or performance by the Company, any Group Member or any Affiliate of any of them, of this Agreement or any agreement contemplated by this Agreement (including the Transaction Agreements, and including the exercise by the Company of the rights accorded pursuant to Article XIII), shall not constitute a breach by the Board of Directors of any duty that the Board of Directors may owe the Company or the Members or any other Persons under this Agreement (or any other agreements) or of any duty (fiduciary or otherwise) existing at law, in equity or otherwise.