Overbid Procedures. The parties acknowledge that, notwithstanding anything to the contrary herein, under the Bankruptcy Code and applicable law Seller must take reasonable steps to demonstrate that it has sought to obtain the highest or best price possible for the Acquired Assets, including, but not limited to, giving notice of the transactions contemplated by this Agreement to creditors and other interested parties as ordered by the Bankruptcy Court, providing information about the Acquired Business to responsible bidders subject to appropriate confidentiality agreements, entertaining higher or better offers from responsible bidders, and, if necessary, conducting an auction. To facilitate the foregoing, Seller shall, promptly following the Petition Date, seek the entry of an order (the "Overbid Procedures Order") providing for procedures substantially similar to the following procedures: (a) Seller shall give notice of the transactions contemplated by this Agreement to such persons and in such manner as the Bankruptcy Court shall direct. (b) Unless this Agreement has been terminated in accordance with its terms and except as provided pursuant to Section 5.4(a), Seller will not authorize or permit any of its officers, directors or employees, or any investment banker, financial adviser, attorney, accountant or any other representative to solicit, initiate or encourage, or take any other direct or indirect action to facilitate, any inquiry or the making of any proposal that constitutes, or may reasonably expected to lead to, an Overbid (as hereinafter defined); provided, however, that if, after Bankruptcy Court approval of the Overbid Procedures Order, the Board of Directors of Seller determines in good faith that it is necessary to do so to comply with its fiduciary duties under corporate law or the Bankruptcy Code, Seller may, in response to an unsolicited Overbid (x) provide public and non-public information concerning the Acquired Business to those parties who have delivered an Overbid, which meets the requirements of clause (c) below, provided that such party executes a confidentiality agreement substantially the same as the Confidentiality Agreement, and (y) participate in negotiations or discussions concerning such Overbid. Seller shall promptly notify Purchaser in writing of (i) any proposal received from any third party within 24 hours of the Seller's receipt of such proposal, and (ii) any inquiry or request for information from any third party within five Business Days of receipt of such inquiry or request. Notices by the Seller pursuant to the preceding sentence shall include (to the extent known by the Seller) the material terms and conditions of such inquiry, proposal or request and the identity of the person making such inquiry, proposal or request. Seller shall keep Purchaser informed of the status (including amendments or proposed amendments) of any such inquiry, proposal or request, and upon the request of Purchaser shall identify and furnish to Purchaser all information provided in response to any such inquiry, proposal or request. (c) Seller will consider as higher or better offers ("Overbids") for the Acquired Business and Assumed Liabilities only those proposals that meet all of the following requirements: (i) Overbids that propose consideration having a readily ascertainable fair market value of not less than $3,500,000 in excess of the sum of the Purchase Price (without taking into account possible adjustments hereunder) and any amounts payable pursuant to Section 7.3, subject to adjustments no less favorable to Seller than the adjustments hereunder. (ii) Overbids that are in the form of this Agreement marked to show all changes thereto and that are on terms and conditions no less favorable in the aggregate to Seller than terms and conditions contained in this Agreement, including, but not limited to, the Escrow, the indemnities and the time of closing. (iii) Overbids that are delivered to Seller with copies to Purchaser not later than 5:00 p.m. Eastern Standard Time on the seventh Business Day prior to the date set for the hearing to approve the transactions contemplated by this Agreement (the "Section 363/365 Hearing") and that are accompanied by appropriate evidence (as determined in good faith by Seller) of the bidder's financial ability to consummate a transaction on or prior to the Closing Date. (iv) With respect to subsequent Overbids (including any by Purchaser), Overbids that include additional consideration of at least $1,000,000 over the highest previous Overbid. (d) If any qualified Overbids are timely received, an auction will be conducted on the second business day following the due date for Overbids at the offices of counsel for Seller at which only Purchaser, any member of the "statutory committee" appointed in the Chapter 11 Case and any person who has timely submitted an Overbid in conformity with this Section 5.4 shall be entitled to participate. At the auction, bidding shall begin with the highest qualifying Overbid and shall not conclude until each participating bidder has had the opportunity to submit any additional Overbid with full knowledge of the existing highest bid. (e) Seller shall determine in good faith whether a submitted Overbid meets the requirements described herein and whether this Agreement or such Overbid constitutes the highest or best offer for the Acquired Assets and Assumed Liabilities. The highest or best offer so determined so determined by Seller shall be submitted to the Bankruptcy Court for approval at the Section 363/365 Hearing. Purchaser shall be deemed a party in interest with standing to appear and be heard in connection with any motion, hearing, or other proceeding relating to this Agreement or any Overbid.
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Overbid Procedures. (a) The parties Purchaser and the Seller acknowledge that, notwithstanding anything to that the contrary herein, under the Bankruptcy Code and applicable law Seller must take reasonable steps to demonstrate that it has sought to obtain the highest or and best price possible for the Acquired Assets, including, but not limited to, giving notice Assets and the consummation of the transactions contemplated by this Agreement Agreement, including giving notice thereof to the Seller's creditors and other interested parties as ordered by the Bankruptcy Courtparties, providing information about the Acquired Business Seller's business to responsible prospective bidders (subject to appropriate confidentiality agreementsagreements no less restrictive than the Confidentiality Agreement), entertaining higher or and better offers from responsible such prospective bidders, and, if necessaryin the event that additional qualified prospective bidders desire to bid for the Assets, conducting an auction. To facilitate the foregoing, Seller shall, promptly following the Petition Date, seek the entry of an order auction (the "Overbid Auction"). The Seller and the Purchaser agree, and the motion to approve the Bidding Procedures Order") providing for procedures substantially similar Order shall reflect the fact, that the provisions of this Agreement, including this Section and Section 4.8, are reasonable, were a material inducement to the following procedures:
(a) Seller shall give notice of the transactions contemplated by Purchaser to enter into this Agreement and are designed to such persons achieve the highest and in such manner as best price for the Bankruptcy Court shall directAssets.
(b) Unless this Agreement has been terminated in accordance with its terms and except as provided pursuant to Section 5.4(a)To be considered by the Seller, Seller will not authorize or permit any of its officers, directors or employees, or any investment banker, financial adviser, attorney, accountant or any a prospective bidder (other representative to solicit, initiate or encourage, or take any other direct or indirect action to facilitate, any inquiry or than the making of any proposal that constitutes, or may reasonably expected to lead to, an Overbid Purchaser) must: (as hereinafter defined); provided, however, that if, after Bankruptcy Court approval of the Overbid Procedures Order, the Board of Directors of Seller determines in good faith that it is necessary to do so to comply with its fiduciary duties under corporate law or the Bankruptcy Code, Seller may, in response to an unsolicited Overbid (xi) provide public and non-public information concerning the Acquired Business to those parties who have delivered an Overbid, which meets the requirements of clause (c) below, provided that such party executes execute a confidentiality agreement substantially with the same as Seller no less restrictive than the Confidentiality Agreement, ; (ii) make a binding and irrevocable cash bid that exceeds the Purchase Price by more than ten percent (y10%) participate in negotiations or discussions concerning such ("Initial Overbid. Seller shall promptly notify Purchaser in writing of "); (iiii) any proposal received from any third party within 24 hours of demonstrate to the Seller's receipt reasonable satisfaction, evidence of such proposalbidder's ability to pay its proposed purchase price, including making a deposit delivered to Seller's counsel not later than 72 hours prior to the Sale Hearing equal to ten percent (10%) of the amount of such bidder's proposed cash purchase price ("Deposit"); (iv) have no financing or other conditions other than those which are contained in this Agreement; (v) provide to the Seller and the Purchaser not later than 72 hours prior to the Sale Hearing a marked version of this Agreement which shows how such bidder's proposed definitive purchaser agreement differs from this Agreement; and (iivi) any inquiry or request for information from any third party within five Business Days of receipt of such inquiry or request. Notices by be ready, willing and able to consummate a transaction on terms that are otherwise at least as favorable to the Seller pursuant to as the preceding sentence shall include (to terms set forth in this Agreement. In the extent known event that a qualified Initial Overbid is made, every successive overbid thereafter must exceed the previous overbid by the Seller) the material terms and conditions of such inquiry, proposal or request and the identity of the person making such inquiry, proposal or request. Seller shall keep Purchaser informed of the status (including amendments or proposed amendments) of any such inquiry, proposal or request, and upon the request of Purchaser shall identify and furnish to Purchaser all information provided in response to any such inquiry, proposal or requestnot less than $10,000.
(c) The Seller will consider as higher shall promptly (and in no event later than 24 hours) after receipt of any offer, inquiry, indication of interest or better offers request for non-public information from any prospective bidder advise the Purchaser orally and in writing of such offer, inquiry, indication of interest or request ("Overbids") for including the Acquired Business and Assumed Liabilities only those proposals that meet all identity of the following requirements:
(i) Overbids that propose consideration having a readily ascertainable fair market value Person making or submitting such offer, inquiry, indication of not less than $3,500,000 in excess of the sum of the Purchase Price (without taking into account possible adjustments hereunder) and any amounts payable pursuant to Section 7.3interest or request, subject to adjustments no less favorable to Seller than the adjustments hereunder.
(ii) Overbids that are in the form of this Agreement marked to show all changes thereto and that are on terms and conditions no less favorable in the aggregate to Seller than terms and conditions contained in this Agreement, including, but not limited to, the Escrow, the indemnities and the time of closing.
(iiiterms thereof) Overbids that are delivered to Seller with copies to Purchaser not later than 5:00 p.m. Eastern Standard Time on the seventh Business Day is made or submitted by any Person prior to the date set for Closing. The Seller shall keep the hearing to approve the transactions contemplated by this Agreement (the "Section 363/365 Hearing") and that are accompanied by appropriate evidence (as determined in good faith by Seller) of the bidder's financial ability to consummate a transaction on or prior Purchaser fully informed with respect to the Closing Date.
(iv) With respect to subsequent Overbids (including status of any by Purchaser)such offer, Overbids that include additional consideration inquiry, indication of at least $1,000,000 over the highest previous Overbidinterest or request and any modification or proposed modification thereto.
(d) If any qualified Overbids are timely receivedShould overbidding take place, an auction will be conducted on the second business day following Purchaser shall have the due date for Overbids at right, but not the offices of counsel for Seller at which only Purchaserobligation, any member of the "statutory committee" appointed to participate in the Chapter 11 Case overbidding and to be approved as the overbidder based upon any person who has timely submitted an Overbid such overbid, and the Purchaser shall be so approved if its overbid (after taking into account any credit as described below) is at least as favorable to the Seller in conformity with this Section 5.4 the aggregate as any other overbid. At all times in the bidding, the Purchaser shall be entitled to participate. At use, and if the auctionPurchaser is identified as the successful bidder, bidding the Purchaser shall begin with have, a credit in an amount equal to the Termination Payment that would be payable if the highest qualifying Overbid and shall not conclude until each participating bidder has had that the opportunity Purchaser is overbidding were identified as the successful bidder. Any such credit may be used by the Purchaser to submit reduce any additional Overbid cash amount payable by the Purchaser with full knowledge of the existing highest bidrespect to its overbid.
(e) Seller shall determine in good faith whether a submitted Overbid meets the requirements described herein and whether this Agreement or such Overbid constitutes the highest or best offer for the Acquired Assets and Assumed Liabilities. The highest or best offer so determined so determined by Seller shall be submitted to the Bankruptcy Court for approval at the Section 363/365 Hearing. Purchaser shall be deemed a party in interest with standing to appear and be heard in connection with any motion, hearing, or other proceeding relating to this Agreement or any Overbid.
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