Common use of Exceptions to Exclusivity Clause in Contracts

Exceptions to Exclusivity. Notwithstanding anything in this Agreement to the contrary, the following shall be exempt from the restrictions set forth in Section 7.5: (a) Any Person in which either BAG, BN, or any of their respective Affiliates owns: (i) ten percent (10%) or less, in case the primary activity of such Person is the Business. For purposes of the preceding sentence, the primary activity of a Person shall be deemed to be the Business only if it derives twenty-five percent (25%) or more of its net revenues from the conduct of Business for the fiscal year of such Person preceding the acquisition; (ii) twenty percent (20%) or less, in the case of any Person the primary activity of which involves or is focused on sectors outside of the Business and where the contribution from the Business, in net revenues, is less than twenty-five percent (25%) (on a consolidated basis) but more than ten percent (10%) (on a consolidated basis) for the fiscal year of such Person preceding the acquisition; (iii) any percentage of another Person, without limitation, if the net revenues of such Person from the conduct of Business (on a consolidated basis) is less than ten percent (10%) of its total net revenues for the fiscal year of such Person preceding the acquisition; or (iv) any acquisition of another Person where such Person is directly engaged in the Business (directly or through one or more units) to an extent greater than that permitted by the above provisions of this Agreement provided that, within a period of twelve (12) months after the date of the acquisition, the acquiring party either: (a) makes an orderly divestiture of such portions of the acquired business which are conducted by the acquired Person or its Affiliates to a third party; or (b) the acquiring party offers and sells such identifiable unit which is engaged in the Business to the Company. In case an offer is made to the Company under the preceding sentence, the purchase price shall be determined by the offering party subject to acceptance, on behalf of the Company, by Managers who are not appointed by the offering party. (v) For purposes of this Section, the ownership interest of each of BN and BAG, respectively, shall be aggregated with the ownership interest of any Person in which it directly or indirectly through a chain of other Persons owns an interest of fifty percent (50%) or more.

Exceptions to Exclusivity. Notwithstanding anything in this Agreement to the contrary, the following shall be exempt from the restrictions set forth in Section 7.57.7: (a) Any Person in which either BAG, BN, or any of their respective Affiliates owns: (i) ten percent (10%) or less, in case the primary activity of such Person is the Business. For purposes of the preceding sentence, the primary activity of a Person shall be deemed to be the Business only if it derives twenty-five percent (25%) or more of its net revenues from the conduct of Business for the fiscal year of such Person preceding the acquisition; (ii) twenty percent (20%) or less, in the case of any Person the primary activity of which involves or is focused on sectors outside of the Business and where the contribution from the Business, in net revenues, is less than twenty-five percent (25%) (on a consolidated basis) but more than ten percent (10%) (on a consolidated basis) for the fiscal year of such Person preceding the acquisition; (iii) any percentage of another Person, without limitation, if the net revenues of such Person from the conduct of Business (on a consolidated basis) is less than ten percent (10%) of its total net revenues for the fiscal year of such Person preceding the acquisition; or (iv) any acquisition of another Person where such Person is directly engaged in the Business (directly or through one or more units) to an extent greater than that permitted by the above provisions of this Agreement provided that, within a period of twelve (12) months after the date of the acquisition, the acquiring party either: (a) makes an orderly divestiture of such portions of the acquired business which are conducted by the acquired Person or its Affiliates to a third party; or (b) the acquiring party offers and sells such identifiable unit which is engaged in the Business to the Company. In case an offer is made to the Company under the preceding sentence, the purchase price shall be determined by the offering party subject to acceptance, on behalf of the Company, by Managers who are not appointed by the offering party. (v) For purposes of this Section, the ownership interest of each of BN and BAG, respectively, shall be aggregated with the ownership interest of any Person in which it directly or indirectly through a chain of other Persons owns an interest of fifty percent (50%) or more.