Common use of No Solicitations; Other Offers Clause in Contracts

No Solicitations; Other Offers. (a) CN agrees that neither it nor ------------------------------ any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (CN, its Subsidiaries and their officers, directors, employees, agents and representatives being referred to as the "CN Representatives") not ------------------ to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Proposal. CN further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the CN Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to or in contemplation of an Alternative Proposal or engage in any negotiations or discussions concerning an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that -------- ------- nothing contained in this Agreement shall prevent either CN or its directors from: (A) complying with Rule 14d-9 and Rule 14e-2 promulgated under the 1934 Act with regard to an Alternative Proposal or complying with the requirements of the CBCA and applicable Canadian securities Laws in relation to the preparation and dissemination of directors' circulars in response to take-over bids and the calling and holding of requisitioned stockholders meetings; (B) prior to the taking of the vote to be taken at the CN Stockholder Meeting, engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Alternative Proposal; or (C) prior to the taking of the vote to be taken at the CN Stockholder Meeting, subject to the obligation of CN pursuant to Section 2.1(b) to duly convene the CN -------------- Stockholder Meeting at which a vote of the stockholders of CN shall be taken regarding the approval and adoption of the Arrangement Resolutions, recommending such an unsolicited bona fide written Alternative Proposal to the stockholders of CN if, and only to the extent that, with respect to the actions referred to in clauses (B) or (C), (i) CN has complied with the terms of this Section 6.3, ----------- (ii) the board of directors of CN concludes in good faith (after consultation with its outside legal counsel and its financial advisors) that such Alternative Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to CN's stockholders from a financial point of view than the transactions contemplated by this Agreement, (iii) the board of directors of CN determines in good faith after consultation with outside legal counsel that the failure to take such action would result in the reasonable likelihood that the board of directors would breach its fiduciary duties under applicable Law, and (iv) prior to entering into negotiations or discussions with, or providing any information or data to, any Person in connection with an Alternative Proposal by any such Person, the board of directors of CN shall receive from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; provided, however, that such confidentiality -------- ------- agreement shall contain terms that allow CN to comply with its obligations under this Section 6.3. ----------- (b) CN agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Alternative Proposal. CN agrees that it will take the necessary steps to promptly inform each CN Representative of the obligations undertaken in Section 6.3(a). CN agrees that it will notify BNSF promptly, but -------------- in any event within twenty-four (24) hours, if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any CN Representative indicating, in connection with such notice, the name of such Person making such inquiry, proposal, offer or request and the substance of any such inquiries, proposals or offers. CN thereafter shall keep BNSF informed, on a timely basis, of the status and terms of any such inquiries, proposals or offers and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the notice delivered by CN commencing the CN Five Business Day Window shall set forth all material terms of the Alternative Proposal or other matter forming the basis for the withdrawal, modification or change by CN's board of directors of its recommendation that the CN stockholders approve and adopt the Arrangement Resolution and such notice shall be updated in writing on a current basis in the event that any such material terms are modified or changed. Without limiting BNSF's right to make proposals in general, BNSF shall be permitted to make one or more proposals to CN during the CN Five Business Day Window and such proposals shall be considered by CN. CN also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of any Alternative Proposal to return all confidential information heretofore furnished to such Person by or on behalf of CN or any of its Subsidiaries.

No Solicitations; Other Offers. (a) CN agrees that neither it nor ------------------------------ any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (CN, its Subsidiaries and their officers, directors, employees, agents and representatives being referred to as the "CN Representatives") not ------------------ to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Proposal. CN further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the CN Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to or in contemplation of an Alternative Proposal or engage in any negotiations or discussions concerning an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that -------- ------- nothing contained in this Agreement shall prevent either CN or its directors from: (A) complying with Rule 14d-9 and Rule 14e-2 promulgated under the 1934 Act with regard to an Alternative Proposal or complying with the requirements of the CBCA and applicable Canadian securities Laws in relation to the preparation and dissemination of directors' circulars in response to take-over bids and the calling and holding of requisitioned stockholders meetings; (B) prior to the taking of the vote to be taken at the CN Stockholder Meeting, engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Alternative Proposal; or (C) prior to the taking of the vote to be taken at the CN Stockholder Meeting, subject to the obligation of CN pursuant to Section 2.1(b) to duly convene the CN -------------- Stockholder Meeting at which a vote of the stockholders of CN shall be taken regarding the approval and adoption of the Arrangement Resolutions, recommending such an unsolicited bona fide written Alternative Proposal to the stockholders of CN if, and only to the extent that, with respect to the actions referred to in clauses (B) or (C), (i) CN has complied with the terms of this Section 6.3, ----------- (ii) the board of directors of CN concludes in good faith (after consultation with its outside legal counsel and its financial advisors) that such Alternative Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to CN's stockholders from a financial point of view than the transactions contemplated by this Agreement, (iii) the board of directors of CN determines in good faith after consultation with outside legal counsel that the failure to take such action would result in the reasonable likelihood that the board of directors would breach its fiduciary duties under applicable Law, and (iv) prior to entering into negotiations or discussions with, or providing any information or data to, any Person in connection with an Alternative Proposal by any such Person, the board of directors of CN shall receive from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; provided, however, that such confidentiality -------- ------- agreement shall contain terms that allow CN to comply with its obligations under this Section 6.3. -----------. (b) CN agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Alternative Proposal. CN agrees that it will take the necessary steps to promptly inform each CN Representative of the obligations undertaken in Section 6.3(a). CN agrees that it will notify BNSF promptly, but -------------- in any event within twenty-four (24) hours, if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any CN Representative indicating, in connection with such notice, the name of such Person making such inquiry, proposal, offer or request and the substance of any such inquiries, proposals or offers. CN thereafter shall keep BNSF informed, on a timely basis, of the status and terms of any such inquiries, proposals or offers and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the notice delivered by CN commencing the CN Five Business Day Window shall set forth all material terms of the Alternative Proposal or other matter forming the basis for the withdrawal, modification or change by CN's board of directors of its recommendation that the CN stockholders approve and adopt the Arrangement Resolution and such notice shall be updated in writing on a current basis in the event that any such material terms are modified or changed. Without limiting BNSF's right to make proposals in general, BNSF shall be permitted to make one or more proposals to CN during the CN Five Business Day Window and such proposals shall be considered by CN. CN also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of any Alternative Proposal to return all confidential information heretofore furnished to such Person by or on behalf of CN or any of its Subsidiaries.

No Solicitations; Other Offers. (a) CN BNSF agrees that neither it nor ------------------------------ any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (CNBNSF, its Subsidiaries and their officers, directors, employees, agents and representatives being referred to as the "CN BNSF Representatives") not ------------------ -------------------- to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Proposal. CN BNSF further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the CN BNSF Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to or in contemplation of an Alternative Proposal or engage in any negotiations or discussions concerning an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, -------- however, that -------- ------- nothing contained in this Agreement shall prevent either CN BNSF or ------- its directors from: (A) complying with Rule 14d-9 and Rule 14e-2 promulgated under the 1934 Act with regard to an Alternative Proposal or complying with the requirements of the CBCA and applicable Canadian securities Laws in relation to the preparation and dissemination of directors' circulars in response to take-over bids and the calling and holding of requisitioned stockholders meetingsProposal; (B) prior to the taking of the vote to be taken at the CN BNSF Stockholder Meeting, engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Alternative ProposalProposal by any such Person; or (C) prior to the taking of the vote to be taken at the CN BNSF Stockholder Meeting, subject to the obligation of CN BNSF pursuant to Section 2.1(b------- 2.2 (b) to duly convene the CN -------------- Stockholder Meeting at which a vote of the stockholders of CN BNSF shall be taken regarding the approval and adoption of this Agreement and the Arrangement Resolutionstransactions contemplated by this Agreement, recommending such an unsolicited bona fide written Alternative Proposal to the stockholders of CN BNSF if, and only to the extent that, with respect to the actions referred to in clauses (B) or (C), (i) CN BNSF has complied with the terms of this Section 6.37.3, ----------- (ii) the board of directors of CN BNSF concludes in good faith (after consultation with its outside legal counsel and its financial advisors) that such Alternative Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to CNBNSF's stockholders from a financial point of view than the transactions contemplated by this Agreement, (iii) the board of directors of CN BNSF determines in good faith after consultation with outside legal counsel that the failure to take such action would result in the reasonable likelihood that the board of directors would breach its fiduciary duties to BNSF or its stockholders under applicable Law, Law and (iv) prior to entering into negotiations or discussions with, or providing any information or data to, any Person in connection with an Alternative Proposal by any such Person, the board of directors of CN BNSF shall receive from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; provided, however, that such confidentiality -------- ------- agreement shall contain terms that allow CN BNSF to comply with its obligations under this Section 6.37.3. ----------- (b) CN agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Alternative Proposal. CN agrees that it will take the necessary steps to promptly inform each CN Representative of the obligations undertaken in Section 6.3(a). CN agrees that it will notify BNSF promptly, but -------------- in any event within twenty-four (24) hours, if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any CN Representative indicating, in connection with such notice, the name of such Person making such inquiry, proposal, offer or request and the substance of any such inquiries, proposals or offers. CN thereafter shall keep BNSF informed, on a timely basis, of the status and terms of any such inquiries, proposals or offers and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the notice delivered by CN commencing the CN Five Business Day Window shall set forth all material terms of the Alternative Proposal or other matter forming the basis for the withdrawal, modification or change by CN's board of directors of its recommendation that the CN stockholders approve and adopt the Arrangement Resolution and such notice shall be updated in writing on a current basis in the event that any such material terms are modified or changed. Without limiting BNSF's right to make proposals in general, BNSF shall be permitted to make one or more proposals to CN during the CN Five Business Day Window and such proposals shall be considered by CN. CN also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of any Alternative Proposal to return all confidential information heretofore furnished to such Person by or on behalf of CN or any of its Subsidiaries.

No Solicitations; Other Offers. (a) CN BNSF agrees that neither it nor ------------------------------ any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (CNBNSF, its Subsidiaries and their officers, directors, employees, agents and representatives being referred to as the "CN BNSF Representatives") not ------------------ to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Proposal. CN BNSF further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the CN BNSF Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to or in contemplation of an Alternative Proposal or engage in any negotiations or discussions concerning an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that -------- ------- nothing contained in this Agreement shall prevent either CN BNSF or its directors from: (A) complying with Rule 14d-9 and Rule 14e-2 promulgated under the 1934 Act with regard to an Alternative Proposal or complying with the requirements of the CBCA and applicable Canadian securities Laws in relation to the preparation and dissemination of directors' circulars in response to take-over bids and the calling and holding of requisitioned stockholders meetingsProposal; (B) prior to the taking of the vote to be taken at the CN BNSF Stockholder Meeting, engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Alternative ProposalProposal by any such Person; or (C) prior to the taking of the vote to be taken at the CN BNSF Stockholder Meeting, subject to the obligation of CN BNSF pursuant to Section 2.1(b2.2(b) to duly convene the CN -------------- BNSF Stockholder Meeting at which a vote of the stockholders of CN BNSF shall be taken regarding the approval and adoption of this Agreement and the Arrangement Resolutionstransactions contemplated by this Agreement, recommending such an unsolicited bona fide written Alternative Proposal to the stockholders of CN BNSF if, and only to the extent that, with respect to the actions referred to in clauses (B) or (C), (i) CN BNSF has complied with the terms of this Section 6.37.3, ----------- (ii) the board of directors of CN BNSF concludes in good faith (after consultation with its outside legal counsel and its financial advisors) that such Alternative Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to CNBNSF's stockholders from a financial point of view than the transactions contemplated by this Agreement, (iii) the board of directors of CN BNSF determines in good faith after consultation with outside legal counsel that the failure to take such action would result in the reasonable likelihood that the board of directors would breach its fiduciary duties to BNSF or its stockholders under applicable Law, Law and (iv) prior to entering into negotiations or discussions with, or providing any information or data to, any Person in connection with an Alternative Proposal by any such Person, the board of directors of CN BNSF shall receive from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; provided, however, that such confidentiality -------- ------- agreement shall contain terms that allow CN BNSF to comply with its obligations under this Section 6.3. -----------7.3. (b) CN BNSF agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Alternative Proposal. CN BNSF agrees that it will take the necessary steps to promptly inform each CN BNSF Representative of the obligations undertaken in Section 6.3(a7.3(a). CN BNSF agrees that it will notify BNSF CN promptly, but -------------- in any event within twenty-four (24) hours, if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any CN BNSF Representative indicating, in connection with such notice, the name of such Person making such inquiry, proposal, offer or request and the substance of any such inquiries, proposals or offers. CN BNSF thereafter shall keep BNSF CN informed, on a timely basis, of the status and terms of any such inquiriesinquires, proposals or offers and the status of any such discussions or negotiations. Without limiting the generality of the foregoing, the notice delivered by CN BNSF commencing the CN BNSF Five Business Day Window shall set forth all material terms of the Alternative Proposal or other matter forming the basis for the withdrawal, modification or change by CNBNSF's board of directors of its recommendation that the CN BNSF stockholders approve and adopt the Arrangement Resolution this Agreement and such notice shall be updated in writing on a current basis in the event that any such material terms are modified or changed. Without limiting BNSFCN's right to make proposals in general, BNSF CN shall be permitted to make one or more proposals to CN BNSF during the CN BNSF Five Business Day Window and such proposals shall be considered by CNBNSF. CN BNSF also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of any Alternative Proposal to return all confidential information heretofore furnished to such Person by or on behalf of CN BNSF or any of its Subsidiaries. 7.4 Takeover Statutes; Rights Plan. BNSF shall take all actions necessary to ensure that the representations and warranties set forth in Section 4.16 remain true and correct at all times.