Fiduciary exception. Notwithstanding anything to the contrary in Section 6.6.1, prior to the time, but not after, the Stockholder Approval is obtained, Seller may, in response to an unsolicited bona fide, written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made or renewed on or after the date of this Agreement and which did not result from a material breach of this Section 6.6, (i) contact the Person or group of Persons making such Acquisition Proposal solely to inform such Person or group of Persons of the terms of this Section 6.6, (ii) provide access to non-public information regarding Seller to the Person who made such Acquisition Proposal; provided that such information has previously been made available to Purchaser or is provided to Purchaser substantially concurrently with the making of such information available to such Person and that, prior to furnishing any such material non-public information, Seller receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not less favorable in any material respect to Seller than those contained in the Confidentiality Agreement and does not prohibit Seller from providing any information to Purchaser in accordance with, and otherwise complying with, this Agreement (such confidentiality agreement, an “Acceptable Confidentiality Agreement”) and (iii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only if, prior to taking any action described in clauses (i), (ii) or (iii) above, Seller has provided prior written notice to Purchaser and the Board determines in good faith after consultation with (A) Seller’s financial advisor and outside legal counsel that based on the information then available, that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (B) Seller’s outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board to Seller’s stockholders under applicable Law. Seller shall provide Purchaser with an accurate and complete copy of any Acceptable Confidentiality Agreement entered into as contemplated by this Section 6.6 promptly (and in any event within 12 hours) of the execution hereof.
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. 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. Clause 15.1(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 15.1(a).
Fiduciary exception. Clause 7.2(b) does not prohibit any action or inaction by LinQ Capital or any of its Representatives if compliance with clause 7.2(b) would, in the opinion of the Board, formed in good faith in reliance on specific written advice from its external advisers constitute, or would be likely to constitute, a breach of any of the fiduciary or statutory duties of the Directors, provided that the Competing Proposal was not directly or indirectly brought about by, or facilitated by, a breach of clause 7.2(a).
Fiduciary exception. Clauses 6.2(b) and 6.4 (only to the extent it requires disclosure of the identity of the relevant person making or proposing the relevant actual, proposed or potential Competing Transaction) do not prohibit any action or inaction by Xxxxxxxx or any of its Related Persons in relation to any actual, proposed or potential Competing Transaction, which the Hartleys Board acting in good faith determines, having regard to written advice from its external legal Advisers, is a Superior Proposal (or which may reasonably be expected to result in the Competing Transaction becoming a Superior Proposal) and the failure to take or not take such action would constitute, or would be likely to constitute, a breach of the fiduciary or statutory duties of the directors of Hartleys, provided that the actual, proposed or potential Competing Transaction was not directly or indirectly brought about by, or facilitated by, a breach of clause 6.2(a).
Fiduciary exception. Clause 6.2(b) does not prohibit any action or inaction by Complii or any of its Related Persons in relation to any actual, proposed or potential Competing Proposal, which the Complii Board acting in good faith determines, having regard to written advice from its external Advisers, is a Superior Proposal and the failure to take or not take such action would constitute, or would be likely to constitute, a breach of the fiduciary or statutory duties of the directors of Complii, 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. Clauses 8.3 and 8.4(a) 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 did not arise from a breach of clauses 8.1 or 8.2 where the DuluxGroup Board, acting in good faith, determines:
(a) after consultation with its financial adviser, that the Competing Proposal is, or could reasonably be expected to become, a Superior Proposal; and
(b) after receiving advice from its external legal adviser, that failing to respond to the Competing Proposal may constitute a breach of the DuluxGroup Directors’ fiduciary or statutory duties.
