Common use of Fiduciary exception Clause in Contracts

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in the case of such an action taken in connection with an Amcor Competing Proposal, the Amcor Competing Proposal is not withdrawn and the Amcor Board of Directors determines in good faith, after consultation with outside legal counsel and a financial advisor of nationally recognized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. (a) Notwithstanding anything to the contrary in Section 5.4(a)(vi) and Section 5.4(a)(vii), but subject (as applicable) to compliance with Section 5.4(f)5.6, prior to the time, but not after, the Amcor Shareholder Stockholder 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 ProposalSeller may, in either case if response to an unsolicited, written Acquisition Proposal (i)(xwhich Acquisition Proposal was made after the Execution Date) in which did not result from a material breach of this Section 5.6, (i) contact the case Person or group of Persons making such Acquisition Proposal to clarify the terms and conditions thereof and inform such Person or group of Persons of the terms of Section 5.6, (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 at least as restrictive in all material respects on such Person as the Confidentiality Agreement’s terms are on Purchaser (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal) 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 taken described in connection with an Amcor Competing Proposalclause (ii) or (iii) above, the Amcor Competing Proposal is not withdrawn Seller has provided prior written notice to Purchaser and the Amcor Board of Directors determines in good faith, faith after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that (A) based on the information then available that such Amcor Competing Acquisition Proposal constitutes an Amcor a 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) Proposal and (iiB) 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. Notwithstanding Section 5.4(a)(vi5.3(a)(vi) and Section 5.4(a)(vii5.3(a)(vii), but subject (as applicable) to compliance with Section 5.4(f5.3(f), prior to the time, but not after, the Amcor Bemis Shareholder Approval is obtained, the Amcor Bemis Board of Directors may (A) make an Amcor a Bemis Adverse Recommendation Change and/or (B) terminate this Agreement in accordance with Section 8.1(c)(ii8.1(b)(ii) in order to concurrently enter into a definitive agreement for an Amcor a Bemis Superior Proposal, in either case if (i)(x) in the case of such an action taken in connection with an Amcor a Bemis Competing Proposal, the Amcor Bemis Competing Proposal is not withdrawn and the Amcor Bemis Board of Directors determines in good faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that such Amcor Bemis Competing Proposal constitutes an Amcor a Bemis Superior Proposal; or (y) in the case of any such Amcor Bemis Adverse Recommendation Change taken other than in connection with an Amcor a Bemis Competing Proposal, there is a material event, development, circumstance, occurrence or change in circumstances or facts (including any material change in probability or magnitude of circumstances) that was not known to the Bemis Board of Directors on the date of this Agreement (or if known, the consequences of which were not known as of the date of this Agreement) (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 AmcorEvent”) and (ii) the Amcor Bemis 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 Amcor to amend the terms of this Agreement and the Transactions in accordance with Section 5.4(f5.3(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. Notwithstanding Section 5.4(a)(vi5.3(a)(vi) and Section 5.4(a)(vii5.3(a)(vii), but subject (as applicable) to compliance with Section 5.4(f5.3(f), prior to the time, but not after, the Amcor Xxxxx Shareholder Approval is obtained, the Amcor Xxxxx Board of Directors may (A) make an Amcor a Xxxxx Adverse Recommendation Change and/or (B) terminate this Agreement in accordance with Section 8.1(c)(ii8.1(b)(ii) in order to concurrently enter into a definitive agreement for an Amcor a Xxxxx Superior Proposal, in either case if (i)(x) in the case of such an action taken in connection with an Amcor a Xxxxx Competing Proposal, the Amcor Xxxxx Competing Proposal is not withdrawn and the Amcor Xxxxx Board of Directors determines in good faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that such Amcor Xxxxx Competing Proposal constitutes an Amcor a Xxxxx Superior Proposal; or (y) in the case of any such Amcor Xxxxx Adverse Recommendation Change taken other than in connection with an Amcor a Xxxxx Competing Proposal, there is a material event, development, circumstance, occurrence or change in circumstances or facts (including any material change in probability or magnitude of circumstances) that was not known to the Xxxxx Board of Directors on the date of this Agreement (or if known, the consequences of which were not known as of the date of this Agreement) (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 AmcorEvent”) and (ii) the Amcor Xxxxx 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 Amcor to amend the terms of this Agreement and the Transactions in accordance with Section 5.4(f5.3(f), that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.