Common use of Fiduciary exception Clause in Contracts

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.