Common use of Standstill Exceptions Clause in Contracts

Standstill Exceptions. (a) Notwithstanding Sections 3.01 and 3.02, but subject to the provisions of Section 3.03(b) and Section 3.03(c): (i) during the Standstill Period but after the Effective Time, the Equity Holding Entity may acquire beneficial ownership of additional shares of Common Stock (A) in the open market, or (B) in accordance with the terms of Section 3.04, if after giving effect to any acquisition of beneficial ownership of additional shares of Common Stock pursuant to clause (A) or (B), BMS' Beneficial Interest would not exceed the Standstill Interest; (ii) if, during the Standstill Period, the Company provides material non-public information to a third-party in connection with, or begins active negotiation of, a Third-Party Change of Control Transaction, the Company shall promptly, and in any event within 2 Business Days, deliver written notice to BMS to such effect, which notice shall to the extent known by the Company set forth the percentage of Common Stock which the third-party is seeking to acquire pursuant to the Third-Party Change of Control Transaction, and BMS shall have the right to make a non-public proposal to the Board to acquire additional shares of Common Stock; PROVIDED that (i) BMS shall not be required (whether by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such proposal, and (ii) BMS shall not publicly disclose such proposal; PROVIDED FURTHER that notwithstanding the foregoing, if a third-party has publicly proposed a Third-Party Change of Control Transaction and the Company has provided material non-public information to such third-party in connection therewith, or has begun active negotiation of such Third-Party Change of Control Transaction, BMS shall have the right to make a public or non- public proposal to acquire additional shares of Common Stock, subject to the proviso in the penultimate sentence of this paragraph. If the Company accepts such BMS proposal, BMS or the Equity Holding Entity may acquire additional shares of Common Stock in accordance with the terms of such proposal. If the Company rejects such BMS proposal and enters into an agreement with respect to a Third-Party Change of Control Transaction, BMS may make a public proposal to acquire additional shares of Common Stock; PROVIDED that BMS may only acquire beneficial ownership of any additional shares of Common Stock in a transaction for the acquisition of (i) 100% of the outstanding shares of Common Stock, or (ii) the same percentage of the outstanding shares of Common Stock which a third-party has agreed to acquire in the Third-Party Change of Control Transaction. Notwithstanding the foregoing, BMS' right to make any proposal and to acquire additional shares of Common Stock pursuant to this clause (ii) is subject to the condition that the BMS Directors recuse themselves from any and all consideration of a Third-Party Change of Control Transaction by the Board or any committee thereof; (iii) during the Standstill Period, BMS may acquire beneficial ownership of Common Stock if such acquisition has been approved by a majority of the Directors that are not BMS Directors; and (iv) during the Standstill Period, BMS shall be permitted to make non-public requests to the Board to amend or waive any of the limitations set forth in Sections 3.01 or 3.02, which requests the Company may accept or reject in its sole discretion; PROVIDED that (i) BMS shall not be required (whether by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such request, and (ii) BMS shall not publicly disclose such request; PROVIDED FURTHER that if the Company agrees to any such request, and thereafter in connection with such amendment or waiver BMS makes a proposal for a merger or business combination, or a proposal for an acquisition of shares of Common Stock such that, after giving effect to such acquisition, BMS' Beneficial Interest would exceed the Standstill Interest, BMS agrees that any such proposal shall be a Complying Proposal. (b) Notwithstanding the provisions of Section 3.03(a): (i) to the extent that the Standstill Period is still in effect, the exceptions set forth in clauses (i) through (iv) of Section 3.03(a) shall terminate (if not already terminated) upon the earlier to occur of a BMS Dilution Event or the termination of the Commercial Arrangements by the Company pursuant to Section 13.2 of the Commercial Arrangements; and (ii) to the extent that the Standstill Period is still in effect, the exception set forth in Section 3.03(a)(ii) shall terminate (if not already terminated) upon the earlier to occur of a BMS Sell-Down or the termination of the Commercial Arrangements by BMS pursuant to Section 13.3 of the Commercial Arrangements; PROVIDED that if the exception set forth in Section 3.03(a)(ii) is terminated in accordance with this clause (ii), BMS shall be permitted to make a proposal to the Company to acquire Common Stock, but only after an agreement with respect to a Third-Party Change of Control Transaction has been publicly announced by the Company. (c) Notwithstanding anything in this Article 3 to the contrary, nothing shall prohibit the Board from taking any action, or refraining from taking any action, if the Board reasonably believes that taking such action or refraining from taking such action, as the case may be, is necessary in order to comply with its fiduciary duties.

Standstill Exceptions. (a) Notwithstanding Sections 3.01 4.01 and 3.02, but subject to the provisions of Section 3.03(b) and Section 3.03(c): (i) during the Standstill Period but after the Effective Time, the Equity Holding Entity may acquire beneficial ownership of additional shares of Common Stock (A) in the open market, or (B) in accordance with the terms of Section 3.04, if after giving effect to any acquisition of beneficial ownership of additional shares of Common Stock pursuant to clause (A) or (B), BMS' Beneficial Interest would not exceed the Standstill Interest; (ii) if4.02, during the Standstill Period, the Investor Parties: (a) may acquire the Acquired Shares pursuant to the Acquisition Agreement; (b) may acquire in any matter (including through market or block purchases) beneficial ownership of additional Equity Securities if, after giving effect to any such acquisition, the Investor Percentage Interest would not exceed 45%; (c) after the earliest of (A) the Standstill Expiration Date, (B) the date that is 18 months following the date of this Agreement if the Investor Percentage Interest of the Investor Parties in such case on such date represents less than 35% of the issued and outstanding Common Stock and (C) the fifth anniversary of the date of this Agreement (the earliest of (A), (B), and (C), the “Fall Away Date”), and in any case, following a period of review, consultation and good faith negotiation with the Board (or a special committee thereof that does not include any Investor Directors) of not less than 45 days, shall have the right to make a Non-Coercive Offer; (d) shall have the right, if the Company provides material non-public information to becomes the subject of a third-party Third Party Offer, in connection with, or begins active negotiation of, a Third-Party Change of Control Transaction, which case the Company shall promptly, and in any event within 2 two Business Days, deliver written notice to BMS the Investor to such effect, which notice shall to the extent known by the Company set forth the percentage of Common Stock which Voting Power or assets that the third-third party is seeking to acquire pursuant to the Third-Third Party Change of Control TransactionOffer, and BMS shall have the right to make a non-public proposal an Investor Counteroffer to the Board in response to acquire additional shares such Third Party Offer. If the Company rejects any such Investor Counteroffer and enters into an agreement with a third party (other than the Investor Parties) with respect to a transaction that, if consummated, would result in a change of Common Stock; PROVIDED that (i) BMS shall not be required (whether by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because ofcontrol of the Company, the making of such proposal, Investor Parties may make and (ii) BMS shall not publicly disclose such proposal; PROVIDED FURTHER that notwithstanding the foregoing, if a third-party has publicly proposed a Third-Party Change of Control Transaction and the Company has provided material non-public information to such third-party in connection therewith, or has begun active negotiation of such Third-Party Change of Control Transaction, BMS shall have the right to make consummate a public proposal constituting an Investor Counteroffer (including by way of tender or non- public proposal to acquire additional shares of Common Stock, subject to the proviso in the penultimate sentence of this paragraphexchange offer). If the Company accepts any such BMS proposalInvestor Counteroffer, BMS or the Equity Holding Entity Investor Parties may acquire additional shares of Common Stock Equity Securities in accordance with the terms of such proposal. If the Company rejects such BMS proposal and enters into an agreement with respect to a Third-Party Change of Control Transaction, BMS may make a public proposal to acquire additional shares of Common Stock; PROVIDED that BMS may only acquire beneficial ownership of any additional shares of Common Stock in a transaction for the acquisition of (i) 100% of the outstanding shares of Common Stock, or (ii) the same percentage of the outstanding shares of Common Stock which a third-party has agreed to acquire in the Third-Party Change of Control TransactionInvestor Counteroffer. Notwithstanding the foregoing, BMS' an Investor Party’s right to make any proposal Investor Counteroffer and to acquire additional shares of Common Stock Equity Securities pursuant to this clause (iid) is subject to the condition that the BMS Investor Directors recuse themselves from any and all consideration of a Third-Party Change of Control Transaction by the Board or any committee thereof; (iii) during the Standstill Period, BMS may acquire beneficial ownership thereof of Common Stock if such acquisition has been approved by a majority of the Directors that are not BMS DirectorsThird Party Offer or an Investor Counteroffer; and (ive) during shall have the Standstill Period, BMS shall be permitted right to make non-public requests to the Board to amend or waive any of the limitations set forth in Sections 3.01 Section 4.01 or 3.024.02, which requests the Company Other Directors, acting by majority, may accept or reject in its their sole discretion; PROVIDED provided, however, that (i) BMS any such request shall not be required (whether publicly disclosed by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such request, Investor Parties and (ii) BMS shall not publicly disclose such request; PROVIDED FURTHER that if the Company agrees to any such request, and thereafter in connection with such amendment or waiver BMS makes a proposal for a merger or business combination, or a proposal for an acquisition of shares of Common Stock such that, after giving effect to such acquisition, BMS' Beneficial Interest would exceed the Standstill Interest, BMS agrees that any such proposal request shall be made in a Complying Proposal. (b) Notwithstanding manner that is not reasonably likely to require the provisions public disclosure of Section 3.03(a): (i) to the extent that the Standstill Period is still in effect, the exceptions set forth in clauses (i) through (iv) of Section 3.03(a) shall terminate (if not already terminated) upon the earlier to occur of a BMS Dilution Event or the termination of the Commercial Arrangements by the Company pursuant to Section 13.2 of the Commercial Arrangements; and (ii) to the extent that the Standstill Period is still in effect, the exception set forth in Section 3.03(a)(ii) shall terminate (if not already terminated) upon the earlier to occur of a BMS Sell-Down or the termination of the Commercial Arrangements by BMS pursuant to Section 13.3 of the Commercial Arrangements; PROVIDED that if the exception set forth in Section 3.03(a)(ii) is terminated in accordance with this clause (ii), BMS shall be permitted to make a proposal to the Company to acquire Common Stock, but only after an agreement with respect to a Third-Party Change of Control Transaction has been publicly announced such request by the Company. (c) Notwithstanding anything in this Article 3 to the contrary, nothing shall prohibit the Board from taking any action, or refraining from taking any action, if the Board reasonably believes that taking such action or refraining from taking such action, as the case may be, is necessary in order to comply with its fiduciary duties.

Standstill Exceptions. Notwithstanding Sections 4.01 and 4.02: 37 (a) Notwithstanding Sections 3.01 and 3.02, but subject to the provisions of Section 3.03(b) and Section 3.03(c): (i) during the Standstill Period but after the Effective TimePeriod, the Equity Holding Entity Investor Parties may acquire beneficial ownership of additional shares of Common Stock (A) in the open marketEquity Securities if, or (B) in accordance with the terms of Section 3.04, if after giving effect to any acquisition of beneficial ownership of additional shares of Common Stock pursuant to clause (A) or (B)such acquisition, BMS' Beneficial B&W's Percentage Interest would not exceed the Standstill InterestPercentage less the percentage of Voting Power (calculated as of the date of disposition) associated with any Equity Securities disposed of by any Investor Party (other than to another Investor Party) following the date of this Agreement; (iib) if, during the Standstill Period, Xxxxxxxx American becomes the Company provides material non-public information to subject of a third-party in connection withThird Party Offer, or begins active negotiation of, a Third-Party Change of Control Transaction, the Company Xxxxxxxx American shall promptly, and in any event within 2 Business Daystwo business days, deliver written notice to BMS B&W to such effect, which notice shall to the extent known by the Company Xxxxxxxx American set forth the percentage of Common Stock which Voting Power or assets that the third-third party is seeking to acquire pursuant to the Third-Third Party Change of Control TransactionOffer, and BMS the Investor Parties shall have the right to make a non-public proposal B&W Counteroffer to the Board of Directors in response to acquire additional shares of Common Stock; PROVIDED that (i) BMS shall not be required (whether by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement such Third Party Offer. If Xxxxxxxx American accepts any existing public disclosure because ofsuch B&W Counteroffer, the making of such proposal, and (ii) BMS shall not publicly disclose such proposal; PROVIDED FURTHER that notwithstanding the foregoing, if a third-party has publicly proposed a Third-Party Change of Control Transaction and the Company has provided material non-public information to such third-party in connection therewith, or has begun active negotiation of such Third-Party Change of Control Transaction, BMS shall have the right to make a public or non- public proposal to acquire additional shares of Common Stock, subject to the proviso in the penultimate sentence of this paragraph. If the Company accepts such BMS proposal, BMS or the Equity Holding Entity Investor Parties may acquire additional shares of Common Stock Equity Securities in accordance with the terms of such proposalB&W Counteroffer. If the Company Xxxxxxxx American rejects any such BMS proposal B&W Counteroffer and enters into an agreement with a third party (other than the Investor Parties) with respect to a Third-Party Change of Control Significant Transaction or a third party (other than the Investor Parties) initiates a tender offer or exchange offer that would constitute a Significant Transaction, BMS the Investor Parties may make and consummate a public proposal to acquire additional shares constituting a B&W Counteroffer (including by way of Common Stock; PROVIDED that BMS may only acquire beneficial ownership of any additional shares of Common Stock in a transaction for the acquisition of (i) 100% of the outstanding shares of Common Stock, tender offer or (ii) the same percentage of the outstanding shares of Common Stock which a third-party has agreed to acquire in the Third-Party Change of Control Transactionexchange offer). Notwithstanding the foregoing, BMS' an Investor Party's right to make any proposal B&W Counteroffer and to acquire additional shares of Common Stock Equity Securities pursuant to this clause (iib) is subject to the condition that the BMS Investor Directors recuse themselves from any and all consideration of a Third-Party Change of Control Transaction by the Board of Directors or any committee thereof;thereof of a Third Party Offer or a B&W Counteroffer; and (iiic) during the Standstill Period, BMS may acquire beneficial ownership of Common Stock if such acquisition has been approved by a majority of the Directors that are not BMS Directors; and (iv) during the Standstill Period, BMS Investor Parties shall be permitted to make non-public requests to the Board of Directors to amend or waive any of the limitations set forth in Sections 3.01 Section 4.01 or 3.024.02, which requests 38 the Company Other Directors, acting by majority, may accept or reject in its their sole discretion; PROVIDED provided, however, that (i) BMS any such request shall not be required (whether publicly disclosed by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such request, Investor Parties and (ii) BMS shall not publicly disclose such request; PROVIDED FURTHER that if the Company agrees to any such request, and thereafter in connection with such amendment or waiver BMS makes a proposal for a merger or business combination, or a proposal for an acquisition of shares of Common Stock such that, after giving effect to such acquisition, BMS' Beneficial Interest would exceed the Standstill Interest, BMS agrees that any such proposal request shall be made in a Complying Proposalmanner that is not reasonably likely to require the public disclosure of such request by Xxxxxxxx American. (b) Notwithstanding the provisions of Section 3.03(a): (i) to the extent that the Standstill Period is still in effect, the exceptions set forth in clauses (i) through (iv) of Section 3.03(a) shall terminate (if not already terminated) upon the earlier to occur of a BMS Dilution Event or the termination of the Commercial Arrangements by the Company pursuant to Section 13.2 of the Commercial Arrangements; and (ii) to the extent that the Standstill Period is still in effect, the exception set forth in Section 3.03(a)(ii) shall terminate (if not already terminated) upon the earlier to occur of a BMS Sell-Down or the termination of the Commercial Arrangements by BMS pursuant to Section 13.3 of the Commercial Arrangements; PROVIDED that if the exception set forth in Section 3.03(a)(ii) is terminated in accordance with this clause (ii), BMS shall be permitted to make a proposal to the Company to acquire Common Stock, but only after an agreement with respect to a Third-Party Change of Control Transaction has been publicly announced by the Company. (c) Notwithstanding anything in this Article 3 to the contrary, nothing shall prohibit the Board from taking any action, or refraining from taking any action, if the Board reasonably believes that taking such action or refraining from taking such action, as the case may be, is necessary in order to comply with its fiduciary duties.

Standstill Exceptions. Notwithstanding Sections 4.01 and 4.02: (a) Notwithstanding Sections 3.01 and 3.02, but subject to the provisions of Section 3.03(b) and Section 3.03(c): (i) during the Standstill Period but after the Effective TimePeriod, the Equity Holding Entity Investor Parties may acquire beneficial ownership of additional shares of Common Stock (A) in the open marketEquity Securities if, or (B) in accordance with the terms of Section 3.04, if after giving effect to any acquisition of beneficial ownership of additional shares of Common Stock pursuant to clause (A) or (B)such acquisition, BMS' Beneficial B&W's Percentage Interest would not exceed the Standstill InterestPercentage less the percentage of Voting Power (calculated as of the date of disposition) associated with any Equity Securities disposed of by any Investor Party (other than to another Investor Party) following the date of this Agreement; (iib) if, during the Standstill Period, Xxxxxxxx American becomes the Company provides material non-public information to subject of a third-party in connection withThird Party Offer, or begins active negotiation of, a Third-Party Change of Control Transaction, the Company Xxxxxxxx American shall promptly, and in any event within 2 Business Daystwo business days, deliver written notice to BMS B&W to such effect, which notice shall to the extent known by the Company Xxxxxxxx American set forth the percentage of Common Stock which Voting Power or assets that the third-third party is seeking to acquire pursuant to the Third-Third Party Change of Control TransactionOffer, and BMS the Investor Parties shall have the right to make a non-public proposal B&W Counteroffer to the Board of Directors in response to acquire additional shares of Common Stock; PROVIDED that (i) BMS shall not be required (whether by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement such Third Party Offer. If Xxxxxxxx American accepts any existing public disclosure because ofsuch B&W Counteroffer, the making of such proposal, and (ii) BMS shall not publicly disclose such proposal; PROVIDED FURTHER that notwithstanding the foregoing, if a third-party has publicly proposed a Third-Party Change of Control Transaction and the Company has provided material non-public information to such third-party in connection therewith, or has begun active negotiation of such Third-Party Change of Control Transaction, BMS shall have the right to make a public or non- public proposal to acquire additional shares of Common Stock, subject to the proviso in the penultimate sentence of this paragraph. If the Company accepts such BMS proposal, BMS or the Equity Holding Entity Investor Parties may acquire additional shares of Common Stock Equity Securities in accordance with the terms of such proposalB&W Counteroffer. If the Company Xxxxxxxx American rejects any such BMS proposal B&W Counteroffer and enters into an agreement with a third party (other than the Investor Parties) with respect to a Third-Party Change of Control Significant Transaction or a third party (other than the Investor Parties) initiates a tender offer or exchange offer that would constitute a Significant Transaction, BMS the Investor Parties may make and consummate a public proposal to acquire additional shares constituting a B&W Counteroffer (including by way of Common Stock; PROVIDED that BMS may only acquire beneficial ownership of any additional shares of Common Stock in a transaction for the acquisition of (i) 100% of the outstanding shares of Common Stock, tender offer or (ii) the same percentage of the outstanding shares of Common Stock which a third-party has agreed to acquire in the Third-Party Change of Control Transactionexchange offer). Notwithstanding the foregoing, BMS' an Investor Party's right to make any proposal B&W Counteroffer and to acquire additional shares of Common Stock Equity Securities pursuant to this clause (iib) is subject to the condition that the BMS Investor Directors recuse themselves from any and all consideration of a Third-Party Change of Control Transaction by the Board of Directors or any committee thereof;thereof of a Third Party Offer or a B&W Counteroffer; and (iiic) during the Standstill Period, BMS may acquire beneficial ownership of Common Stock if such acquisition has been approved by a majority of the Directors that are not BMS Directors; and (iv) during the Standstill Period, BMS Investor Parties shall be permitted to make non-public requests to the Board of Directors to amend or waive any of the limitations set forth in Sections 3.01 Section 4.01 or 3.024.02, which requests the Company Other Directors, acting by majority, may accept or reject in its their sole discretion; PROVIDED provided, however, that (i) BMS any such request shall not be required (whether publicly disclosed by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such request, Investor Parties and (ii) BMS shall not publicly disclose such request; PROVIDED FURTHER that if the Company agrees to any such request, and thereafter in connection with such amendment or waiver BMS makes a proposal for a merger or business combination, or a proposal for an acquisition of shares of Common Stock such that, after giving effect to such acquisition, BMS' Beneficial Interest would exceed the Standstill Interest, BMS agrees that any such proposal request shall be made in a Complying Proposalmanner that is not reasonably likely to require the public disclosure of such request by Xxxxxxxx American. (b) Notwithstanding the provisions of Section 3.03(a): (i) to the extent that the Standstill Period is still in effect, the exceptions set forth in clauses (i) through (iv) of Section 3.03(a) shall terminate (if not already terminated) upon the earlier to occur of a BMS Dilution Event or the termination of the Commercial Arrangements by the Company pursuant to Section 13.2 of the Commercial Arrangements; and (ii) to the extent that the Standstill Period is still in effect, the exception set forth in Section 3.03(a)(ii) shall terminate (if not already terminated) upon the earlier to occur of a BMS Sell-Down or the termination of the Commercial Arrangements by BMS pursuant to Section 13.3 of the Commercial Arrangements; PROVIDED that if the exception set forth in Section 3.03(a)(ii) is terminated in accordance with this clause (ii), BMS shall be permitted to make a proposal to the Company to acquire Common Stock, but only after an agreement with respect to a Third-Party Change of Control Transaction has been publicly announced by the Company. (c) Notwithstanding anything in this Article 3 to the contrary, nothing shall prohibit the Board from taking any action, or refraining from taking any action, if the Board reasonably believes that taking such action or refraining from taking such action, as the case may be, is necessary in order to comply with its fiduciary duties.

Standstill Exceptions. (a) Notwithstanding Sections 3.01 4.01 and 3.02, but subject to the provisions of Section 3.03(b) and Section 3.03(c): (i) during the Standstill Period but after the Effective Time, the Equity Holding Entity may acquire beneficial ownership of additional shares of Common Stock (A) in the open market, or (B) in accordance with the terms of Section 3.04, if after giving effect to any acquisition of beneficial ownership of additional shares of Common Stock pursuant to clause (A) or (B), BMS' Beneficial Interest would not exceed the Standstill Interest; (ii) if4.02, during the Standstill Period, the Company provides material non-public information to a third-party in connection with, or begins active negotiation of, a Third-Party Change of Control Transaction, Investor Parties: (a) may acquire the Company shall promptly, and in any event within 2 Business Days, deliver written notice to BMS to such effect, which notice shall to the extent known by the Company set forth the percentage of Common Stock which the third-party is seeking to acquire Consideration Shares pursuant to the Third-Party Change Share Purchase Agreement; (b) may acquire Consideration Shares pursuant to a Permitted Transfer in accordance with Section 5.01(a); (c) may acquire in any manner, including public market transactions (through market or block purchases), beneficial ownership of Control additional Equity Securities if, after giving effect to any such acquisition, the Aggregate Ownership Limitation would not be exceeded; (d) shall be permitted (i) if the Company publicly announces its intent to pursue a Buyout Transaction, and BMS shall have the right to privately make a non-public counteroffer or proposal to the Board to acquire additional shares of Common Stock; PROVIDED that (ian "Investor Buyout Counteroffer") BMS shall not be required (whether by applicable law or otherwise) to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such proposal, and (ii) BMS shall not publicly disclose such proposal; PROVIDED FURTHER that notwithstanding if the foregoingBoard approves, if recommends or accepts (including by entering into a third-party has publicly proposed a Third-Party Change of Control Transaction and the Company has provided material non-public information to such third-party in connection therewith, or has begun active negotiation of such Third-Party Change of Control Transaction, BMS shall have the right to make a public or non- public proposal to acquire additional shares of Common Stock, subject to the proviso in the penultimate sentence of this paragraph. If the Company accepts such BMS proposal, BMS or the Equity Holding Entity may acquire additional shares of Common Stock in accordance with the terms of such proposal. If the Company rejects such BMS proposal and enters into an definitive agreement with respect to to) a Third-Buyout Transaction with an Unaffiliated Third Party Change of Control Transaction, BMS may make a public proposal to acquire additional shares of Common Stock; PROVIDED that BMS may only acquire beneficial ownership of any additional shares of Common Stock in a transaction for (with the acquisition of (i) 100% of the outstanding shares of Common Stock, or (ii) the same percentage of the outstanding shares of Common Stock which a third-party has agreed to acquire in the Third-Party Change of Control Transaction. Notwithstanding the foregoing, BMS' right to make any proposal and to acquire additional shares of Common Stock pursuant to this clause (ii) is subject to the condition that the BMS Investor Directors recuse recusing themselves from any and all consideration by the Board or committee thereof), to take any of a Third-Party Change the actions described in subsections (a) through (i) of Control Section 4.02, subject to 5.01(a), until such Buyout Transaction is terminated or abandoned, and such standstill restrictions set forth in subsections (a) through (i) of Section 4.02 shall become applicable again upon any such termination or abandonment (unless the Board determines that such standstill restrictions shall cease earlier, with the Investor Directors recusing themselves from any and all consideration by the Board or any committee thereof; (iii) during ); provided that, following the Standstill Periodtermination or abandonment of such Buyout Transaction, BMS may acquire beneficial ownership of Common Stock if such acquisition has been approved by a majority of the Directors that are not BMS Directors; and (iv) during the Standstill Period, BMS shall be permitted to make non-public requests to the Board to amend or waive any of the limitations set forth in Sections 3.01 or 3.02, which requests the Company may accept or reject in its sole discretion; PROVIDED that (i) BMS Section 4.02 shall not be required (whether by applicable law or otherwise) deemed to publicly disclose, or to amend, modify or supplement any existing public disclosure because of, the making of such request, and (ii) BMS shall not publicly disclose such request; PROVIDED FURTHER that if the Company agrees to any such request, and thereafter have been breached in connection with any action taken by the Investor Parties during the time that Section 4.02 became inapplicable pursuant to this Section 4.03(d), provided that such amendment or waiver BMS makes a proposal for a merger or business combination, or a proposal for an acquisition of shares of Common Stock such that, after giving effect to such acquisition, BMS' Beneficial Interest would exceed the Standstill Interest, BMS agrees that any such proposal shall be a Complying Proposal. (b) Notwithstanding the provisions of Section 3.03(a): (i) to the extent that the Standstill Period action is still in effect, the exceptions set forth in clauses (i) through (iv) of Section 3.03(a) shall terminate (if not already terminated) discontinued upon the earlier to occur receipt by the Investor Parties of a BMS Dilution Event or written notice from the Board of the termination or abandonment of the Commercial Arrangements by the Company pursuant to Section 13.2 of the Commercial Arrangements; and (ii) to the extent that the Standstill Period is still in effect, the exception set forth in Section 3.03(a)(ii) shall terminate (if not already terminated) upon the earlier to occur of a BMS Sell-Down or the termination of the Commercial Arrangements by BMS pursuant to Section 13.3 of the Commercial Arrangements; PROVIDED that if the exception set forth in Section 3.03(a)(ii) is terminated in accordance with this clause (ii), BMS shall be permitted to make a proposal to the Company to acquire Common Stock, but only after an agreement with respect to a Third-Party Change of Control Transaction has been publicly announced by the Company. (c) Notwithstanding anything in this Article 3 to the contrary, nothing shall prohibit the Board from taking any action, or refraining from taking any action, if the Board reasonably believes that taking such action or refraining from taking such action, as the case may be, is necessary in order to comply with its fiduciary duties.applicable Buyout Transaction;