Fiduciary exception. (A) Notwithstanding the provisions of Section 7.11(c)(i), Century shall not be prohibited from furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that, (1) such action is taken prior to the issuance of the Confirmation Order, (2) Century’s board of directors (its “Board”), after consultation with independent legal counsel, determines in good faith that such action is required for the Board to comply with its fiduciary obligations to Century’s stakeholders under applicable Legal Requirements, (3) such Acquisition Proposal is an all-cash offer, with all third-party financing (if any) being evidenced by bona fide signed commitments from reputable financial institutions that do not include conditions to such financing less favorable than the conditions set forth in the Commitment Letters, to acquire 100% of Century’s joint venture interests in the Cable Venture, and (4) the Board determines in good faith that such Acquisition Proposal, if accepted, is likely to be consummated, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with and based upon the written opinion (in customary form and subject to customary conditions) of an independent, nationally recognized financial advisor, that the Acquisition Proposal would, if consummated, result in a transaction superior to Century’s stakeholders from a financial point of view than the Transactions (any such materially more favorable Acquisition Proposal being referred to herein as a “Superior Proposal”). Prior to taking any action pursuant to this Section 7.11(c)(ii) with respect to an Acquisition Proposal, Century shall provide prior written notice to the Buyer to the effect that it is proposing to take such action and provide the additional information required by Section 7.11(c)(ii)(B) (to the extent not previously provided to the Buyer).
(B) The Sellers and the Cable Venture shall notify the Buyer of any Acquisition Proposal or request for nonpublic information from any Person who is considering making an Acquisition Proposal (including, without limitation, all material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide the Buyer with a copy...
Fiduciary exception. Notwithstanding Section 5.4(a)(vi) and Section 5.4(a)(vii), but subject (as applicable) to compliance with Section 5.4(f), prior to the time, but not after, the Amcor Shareholder Approval is obtained, the Amcor Board of Directors may (A) make an Amcor Adverse Recommendation Change and/or (B) terminate this Agreement in accordance with Section 8.1(c)(ii) in order to concurrently enter into a definitive agreement for an Amcor Superior Proposal, in either case if (i)(x) in the case of such an action taken in connection with an Amcor Competing Proposal, the Amcor Competing Proposal is not withdrawn and the Amcor Board of Directors determines in good faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that such Amcor Competing Proposal constitutes an Amcor Superior Proposal; or (y) in the case of any such Amcor Adverse Recommendation Change taken other than in connection with an Amcor Competing Proposal, there is an Intervening Event (with references to Bemis in such definition being references to Amcor and it being understood that an opinion by the Independent Expert in the IER that the Transactions are not in the best interests of Amcor Shareholders shall be deemed to qualify as an Intervening Event in relation to Amcor) and (ii) the Amcor Board of Directors determines in good faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, and taking into account any proposal by Bemis to amend the terms of this Agreement and the Transactions in accordance with Section 5.4(f), that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
Fiduciary exception. Clause 6.2(b) does not prohibit any action or inaction by the Target or any of its Related Persons if compliance with clause 6.2(b) would, in the opinion of the Target Board, formed in good faith in reliance on specific written advice from its external legal advisers constitute, or would be likely to constitute, a breach of any of the fiduciary or statutory duties of the Target Directors, provided that the Competing Proposal was not directly or indirectly brought about by, or facilitated by, a breach of clause 6.2(a).
Fiduciary exception.
(a) Clauses 7.3, 7.4 and the obligation to disclose the identity of a Third Party making a Competing Proposal in clause 7.5 do not apply to the extent that they restrict any person from taking or not taking any action with respect to a bona fide Competing Proposal (which was not solicited, invited, encouraged or initiated in breach of clause 7.2) where the APD Board, acting in good faith, determines:
(i) after consultation with its financial adviser, that the Competing Proposal is, or could reasonably be expected to become, a Superior Proposal; and
(ii) after receiving advice from its external legal adviser, that failing to respond to the Competing Proposal would, or would be likely to, constitute a breach of the APD Directors’ fiduciary or statutory duties.
(b) If clause 7.6(a) applies to APD’s obligation to disclose the identity of a Third Party making a Competing Proposal in clause 7.5, APD must instead provide the Bidder with reasonable details of the category or type of Third Party making the Competing Proposal.
Fiduciary exception. Clause 11.1(b) does not prohibit any action or inaction by Asciano or any of its Related Persons in relation to an actual, proposed or potential Competing Proposal if compliance with that clause would, in the opinion of the Asciano Board, formed in good faith after receiving written advice from its external legal advisers, constitute, or would be likely to constitute, a breach of any of the fiduciary or statutory duties of the directors of Asciano, provided that any actual, proposed or potential Competing Proposal in question was not directly or indirectly brought about by, or facilitated by, a breach of clause 11.1(a).
Fiduciary exception. Clauses 8.3(b), 8.3(c), 8.4(a)(ii) or 8.4(b) do not apply to the extent that they restrict Target or the Target Board from taking or refusing to take any action with respect to a Target Competing Proposal (in relation to which there has been no contravention of this clause 8) provided that:
(a) the Target Competing Proposal is bona fide and is made in writing by or on behalf of a person that the Target Board considers is of reputable commercial standing;
(b) the Target Board has determined in good faith after:
(i) consultation with Target’s financial advisers, that the Target Competing Proposal is or would reasonably likely lead to a Superior Proposal; and
(ii) receiving written advice from its external legal adviser practising in the area of corporate law, that failing to take the action or refusing to take the action (as the case may be) with respect to the Target Competing Proposal would be likely to constitute a breach of the fiduciary or statutory obligations of the Target Board.
Fiduciary exception. Clauses 6.3 and 6.4 do not apply to the extent that they restrict Vault or any Vault Director from taking or not taking any action with respect to a written Competing Proposal where the Vault Board, acting in good faith, determines:
(a) that the Competing Proposal is a Superior Proposal; and
(b) after receiving written advice from its external legal adviser, that failing to respond to the Competing Proposal would, or could reasonably be considered to, constitute a breach of the Vault Directors’ fiduciary or statutory duties, provided that the Competing Proposal was not directly or indirectly brought about by, or facilitated by, a breach of this clause 6.
Fiduciary exception. (a) Clause 11.1(b) does not apply to or prohibit any action or inaction by Veda or any of its Related Persons in relation to a bona fide written Competing Proposal, provided that:
(1) the Competing Proposal did not result from a breach of this clause 11; and
(2) in the opinion of the Veda Board, formed in good faith after receiving advice from its external legal and financial advisers, the failure to take such action or to not act would constitute, or would be likely to constitute, a breach of any of the fiduciary or statutory duties of the directors of Veda.
(b) Each party acknowledges that the parties have agreed to include clause 11.2(a) in contemplation of a circumstance where a Competing Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal.
Fiduciary exception. Clause 10.1(b) does not prohibit any action or inaction by Carbon Revolution or the SPAC, any of their respective Related Bodies Corporate or respective Related Persons, if:
(a) in relation to an actual, proposed or potential Competing Proposal, the Carbon Revolution Board determines acting in good faith that:
(1) after consultation with its advisers, such actual, proposed or potential Competing Proposal is a Superior Proposal or could reasonably be expected to become a Superior Proposal; and
(2) after receiving written legal advice from its external legal advisers, compliance with that clause would, or would be reasonably likely to, constitute a breach of any of the fiduciary or statutory duties of the Carbon Revolution Board Members; or
(b) in relation to an actual, proposed or potential SPAC Competing Transaction, the SPAC Board determines acting in good faith that:
(1) after consultation with its advisers, such actual, proposed or potential SPAC Competing Transaction is a SPAC Superior Transaction or could reasonably be expected to become a SPAC Superior Transaction; and
(2) after receiving written legal advice from its external legal advisers, compliance with that clause would, or would be reasonably likely to, constitute a breach of any of the fiduciary or statutory duties of the SPAC Board Members, provided that in either case:
Fiduciary exception. Clause 11.1(b) and clause 11.3 do not prohibit any action or inaction by Target, any of its Related Bodies Corporate or any of their respective Related Persons, in relation to an actual, proposed or potential Competing Proposal if the Independent Board Committee determines that:
(a) after consultation with its advisers, such actual, proposed or potential Competing Proposal is a Superior Proposal or could reasonably be expected to become a Superior Proposal; and
(b) after receiving written legal advice from its external legal advisers, compliance with that clause would, or would be reasonably likely to, constitute a breach of any of the fiduciary or statutory duties of the Independent Directors, provided that the actual, proposed or potential Competing Proposal was not directly or indirectly brought about by, or facilitated by, a breach of clause 11.1(a).
