Common use of BIDDING PROCEDURES Clause in Contracts

BIDDING PROCEDURES. No later than five (5) business days after the execution of this Asset Purchase Agreement by Buyer and Company, Company shall file a motion with the Bankruptcy Court to establish the bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court ("Bidding Procedures Motion"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order of the Bankruptcy Court approving the Bidding Procedures Motion shall provide ("Bidding Procedures Order"): (a) Any competing bid must be for the Sale Assets only and must be flied with the Company, with a copy to Buyer, no later than seven (7) business days after entry of the Bidding Procedures Order. (i) Any competing bid ("Competing Bid") must be in the minimum amount of $14,000,000 and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered by the Bankruptcy Court, the Company or any other party in interest. In such event,.the Purchase Price set forth in Section 3.1 shall be amended to an amount equal to the Highest Competing Bid matched by Buyer and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase of the Sale Assets shall be as otherwise set forth in this Agreement subject to the amendment of the Purchase Price as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order by the Bankruptcy Court approving the sale of the Sale Assets to the Highest Competing Bidder (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent to the payment to Buyer of the sum of $500,000 as a Breakup Fee, and (y) Company shall pay to Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x). (c) Buyer's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Price. (f) Upon execution of this Agreement, Company and Buyer shall confer with the Bankruptcy Court for the purposes of scheduling the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after (x) Buyer determines that the Bankruptcy Court is unable, in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) the Bankruptcy Court does not enter the Bidding Procedures Order or the Final Order as provided herein, Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as provided in this Section 9.3(g), Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Order.

BIDDING PROCEDURES. No later than five (5) business days after the execution of this Asset Purchase Agreement by Buyer and Company, Company Seller shall file a motion with also seek an Order from the Bankruptcy Court to establish (the bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court ("Bidding Procedures Motion"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order of the Bankruptcy Court approving the Bidding Procedures Motion shall provide ("Bidding Procedures Order"):), 10 calendar days in advance of the hearing on the Sale Motion (the "Hearing"), providing for (i) the procedure for parties to follow in the event Seller receives a competing offer or proposal relating to the Assets and (ii) approval of the Overbid Break-up Fee specified in Section 3.2.6, which pleadings shall be in form and substance satisfactory to Purchaser. The Bidding Procedures Order shall provide, among other things, the following: 3.2.1 Only Purchaser and a party who has submitted a Qualified Bid may bid at the Hearing. 3.2.2 A Qualified Bid must meet the following conditions: 3.2.2.1 the maker of such bid must provide to Seller at least five calendar days prior to the Hearing reasonably satisfactory evidence of (a) Any competing bid must be for the Sale Assets only financial capability and must be flied with the Company, with a copy good faith intent to Buyer, no later than seven (7) business days after entry fulfill all of the Bidding Procedures Order. (i) Any competing bid ("Competing Bid") must be terms and conditions of this Agreement on a timely basis, accompanied by payment of an initial cash deposit in the minimum amount of at least $14,000,000 300,000 and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms b) adequate assurance of future performance of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement Assumed Liabilities and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writingAssigned Contracts, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered required by the Bankruptcy CourtCode; and 3.2.2.2 the maker of such bid must execute an asset purchase agreement essentially identical to the Agreement, except that the Company or any other party in interest. In such event,.the bid must provide for a purchase price equal to the Purchase Price set forth in Section 3.1 2.1 hereof, plus an additional $300,000. 3.2.3 Any dispute as to any bidder's intent or ability shall be amended to an amount equal to the Highest Competing Bid matched by Buyer and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase of the Sale Assets shall be as otherwise set forth in this Agreement subject to the amendment of the Purchase Price as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order resolved by the Bankruptcy Court approving at the sale Hearing on the Sale Motion. 3.2.4 At the Hearing on the Sale Motion, the Bankruptcy Court shall decide which of the Sale Assets bids is the highest and best bid, and the holder of said bid must stipulate and agree on the record at the Hearing to be bound by all the Highest Competing Bidder (x) $500,000 terms of the Deposit made by Agreement. If Purchaser's bid is not selected as the Highest Competing Bidder shall become non-refundable highest and best bid, Purchaser shall be applied by entitled to match the Escrow Agent to highest and best bid, in which event Purchaser's bid shall be deemed the payment to Buyer highest and best bid. Purchaser shall be credited with the $100,000 break-up fee set forth in Section 3.2.6 as part of its bid. 3.2.5 Any counterbid in the bidding process over the initial counterbid must be at least $200,000 higher than the prior bid or counterbid. All subsequent counterbids will be at least $200,000 higher than any prior bid or counterbid. 3.2.6 If Seller terminates this Agreement because Purchaser's bid is not the highest and best bid, then within five days of the sum date of $500,000 as a Breakup Feesuch termination, and (y) Company Purchaser shall pay to Buyer be paid the Breakup Break-up Fee of $500,000100,000, which sum fee shall be paid solely from the deposit paid by the Escrow Agent from the Deposit successful bidder as part of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x). (c) Buyersuch successful bidder's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4Qualified Bid, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets without any administrative liability to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Priceestate. (f) Upon execution of this Agreement, Company and Buyer shall confer with the Bankruptcy Court for the purposes of scheduling the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after (x) Buyer determines that the Bankruptcy Court is unable, in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) the Bankruptcy Court does not enter the Bidding Procedures Order or the Final Order as provided herein, Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as provided in this Section 9.3(g), Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Order.

BIDDING PROCEDURES. No later than five (5) business days after the execution of this Asset Purchase Agreement by Buyer and Company, Company shall file a motion with the Bankruptcy Court to establish the bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court ("Bidding Procedures Motion"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order of the Bankruptcy Court approving the Bidding Procedures Motion shall provide ("Bidding Procedures Order"): (a) Any competing bid must be Buyer and Seller Parties acknowledge that this Agreement is the culmination of an extensive process undertaken by Seller Parties to identify and negotiate a transaction with a bidder who was prepared to pay the highest and best purchase price for the Sale Assets only assets of Seller and its Subsidiaries while assuming or otherwise satisfying specified liabilities in order to maximize value for each Seller Party's constituents. The parties also acknowledge that under the Bankruptcy Code, Seller Parties must be flied with take reasonable steps to demonstrate that they have sought to obtain the Companyhighest and best price possible for the assets, with a copy to Buyerincluding, no later than seven (7) business days after entry but not limited to, giving notice of the Bidding Procedures Order. (i) Any competing bid ("Competing Bid") must be in the minimum amount of $14,000,000 transactions contemplated by this Agreement to creditors and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered other interested parties as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered ordered by the Bankruptcy Court, providing information about the Company or any other party Acquired Business and Acquired Assets to responsible bidders subject to appropriate confidentiality agreements, entertaining higher and better offers from responsible bidders, and, if necessary, conducting an auction. To facilitate the foregoing, Seller Parties shall, within two Business Days of the date of this Agreement, seek the entry of an order (in interest. In such event,.the Purchase Price the form attached as Exhibit E) (a) approving the bidding procedures attached as Exhibit F (the "Bidding Procedures"), the amount, timing, terms of payment and priority of the Termination Amount as set forth in Section 3.1 shall be amended to an amount equal to the Highest Competing Bid matched by Buyer Article 8 and the respective rightsprovisions of Section 5.1 and (b) providing for, obligations and duties of Company and Buyer for Buyer's purchase among other things, the procedures set forth below (the "Overbid Procedures Order"). (b) Seller Parties shall give notice of the Sale Assets shall be as otherwise set forth in transactions contemplated by this Agreement subject and the Ancillary Agreements to the amendment of the Purchase Price such Persons and in such manner as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order by the Bankruptcy Court approving the sale of the Sale Assets to the Highest Competing Bidder (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent to the payment to Buyer of the sum of $500,000 as a Breakup Feedirect, and (y) Company shall pay to such additional Persons as Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x)requests. (c) Buyer's Deposit Unless this Agreement has been terminated in accordance with its terms, until the earlier of the entry of the Overbid Procedures Order and September 17, 2002, none of Seller Parties nor any of their Representatives shall be returned to Buyer (i) no later than one business day after a final order solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiry or the Bankruptcy Court denying the Sale Motion in favor making of Buyer any proposal that constitutes, or which approves the sale of the Sale Assets can reasonably be expected to a competing bidder or lead to, an Alternative Transaction; (ii) unless waived by Buyer,. by November 4participate in any discussions or negotiations that could possibly lead to an Alternative Transaction; (iii) enter into any agreement regarding a possible Alternative Transaction or (iv) make or authorize any statement, 1996recommendation or solicitation in support of a possible Alternative Transaction; provided, however, that if the Bankruptcy Court has not entered Board of Directors of Seller determines in good faith that it is necessary to do so to comply with its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Price. (f) Upon execution of this Agreement, Company and Buyer shall confer with fiduciary duties under the Bankruptcy Court for the purposes of scheduling the notice periods Code or applicable corporate law, Seller Parties may, in response to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after an unsolicited inquiry: (x) Buyer determines provide public and non-public information concerning the Acquired Business and its assets to those Persons who first have delivered an inquiry meeting the requirements of the Bidding Procedures; provided that the Bankruptcy Court is unable, such Person executes a confidentiality agreement in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest Bidding Procedures; and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) participate in negotiations or discussions concerning such inquiry. Seller Parties shall promptly notify Buyer orally and in writing of all inquiries or proposals or requests for information received from any party, the Bankruptcy Court does not enter identity of the Bidding Procedures Order Person making such inquiry, proposal or request and provide copies of any written proposals. Seller Parties shall keep Buyer fully informed of the Final Order as provided hereinstatus (including amendments or proposed amendments) of any written proposal. Upon request by Buyer, Seller Parties will identify and furnish to Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as all information provided in this Section 9.3(g)response to any such inquiry, Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Orderproposal or request.

BIDDING PROCEDURES. No later than five (5) business days after the execution of this Asset Purchase Agreement by Buyer and CompanySeller acknowledge that Seller must take reasonable steps to demonstrate that it has sought to obtain the highest and best price for the Purchased Assets and the consummation of the transactions contemplated by this Agreement, Company shall file a motion with including giving notice thereof to Seller's creditors and other interested parties, providing information about the Bankruptcy Court Businesses to establish prospective bidders (subject to appropriate confidentiality agreements), entertaining higher and better offers from such prospective bidders, and, in the bidding procedures set forth in this Section 9.3 and shall further provide all notices event that additional qualified prospective bidders desire to parties in interest required by bid for the Bankruptcy Code and Bankruptcy Rules of Court Purchased Assets, conducting an auction (the "Bidding Procedures MotionAuction"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order of the Bankruptcy Court approving the Bidding Procedures Motion shall provide To be considered by Seller, an initial competing bid from a prospective third-party bidder ("Bidding Procedures OrderCompeting Bidder"): ) must, (a) Any competing bid must be for provide an aggregate purchase price consisting of cash in an amount that exceeds the Sale Assets only and must be flied with the Company, with a copy to Buyer, no later than seven (7) business days after entry of the Bidding Procedures Order. (i) Any competing bid ("Competing Bid") must be in the minimum amount of $14,000,000 and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered by the Bankruptcy Court, the Company or any other party in interest. In such event,.the Purchase Price set forth in Section 3.1 shall be amended to an amount equal to by no less than $50,000 plus the Highest Competing Bid matched by Buyer amounts described in Section 7.10 and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase of the Sale Assets shall be as otherwise set forth in this Agreement subject to the amendment of the Purchase Price as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order approved by the Bankruptcy Court approving in the sale Interim Order, (b) be accompanied by (i) a cash deposit in an amount not less than $450,000 and (ii) evidence of the Sale Assets Competing Bidder's ability, financial and otherwise, to the Highest Competing Bidder (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent to the payment to Buyer of the sum of $500,000 as close a Breakup Feetransaction under this Agreement without delay, and (yc) Company shall pay be on terms that are no more burdensome to Buyer the Breakup Fee of $500,000, which sum Seller's bankruptcy estate than those under this Agreement. A competing bid meeting the foregoing conditions shall be paid by the Escrow Agent from the Deposit of the Highest deemed to be a "Qualifying Competing Bidder as provided by this Section 9.3(b)(ii)(x)Bid. (c) Buyer's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) " In the event the Buyer does not match the Highest that Seller receives a Qualifying Competing Bid from one or more Competing Bidders, and the sale of the Sale Assets to the party submitting the Highest Seller selects and announces a Qualifying Competing Bid does not closeas the highest and best offer for the Purchased Assets (such bid or any subsequently selected bid being the "Prevailing Bid"), this Agreement shall be reinstatedany subsequent bid to acquire the Purchased Assets, as well as any subsequent competing bid thereafter (in either case, a "Subsequent Bid"), must, at Buyer's optiona minimum, upon written notice to (a) be from either Buyer or a Competing Bidder that previously submitted a Qualifying Competing Bid, and (b) be in an amount that exceeds the Company. In such event, no competing bids shall be accepted then Prevailing Bid by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later an amount not less than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement$50,000. In the event that a Qualifying Competing Bid is selected as the Prevailing Bid, Buyer elects agrees to reinstate keep its offer under this Agreement, or any Subsequent Bid made by Buyer, open pending a closing of a sale to an entity other than Buyer. The Interim Order shall further state that Buyer may shall have the right, in its sole discretion apply the Breakup Fee any subsequent competing bid, to credit bid up to the Buyer's Deposit and amount of its claim owing pursuant to the Cash portion Seller Debt Instruments pursuant to section 363(k) of the Purchase PriceBankruptcy Code. (f) Upon execution of this Agreement, Company and Buyer shall confer with the Bankruptcy Court for the purposes of scheduling the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after (x) Buyer determines that the Bankruptcy Court is unable, in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) the Bankruptcy Court does not enter the Bidding Procedures Order or the Final Order as provided herein, Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as provided in this Section 9.3(g), Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Order.

BIDDING PROCEDURES. No later than five (5) business days after On the execution of this Asset Purchase Agreement by Buyer and CompanyPetition Date, Company shall file a motion with the Bankruptcy Court to establish the bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court ("Teton Entities will request an expedited hearing on their Bidding Procedures Motion"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order , including approval of the Bankruptcy Court approving Breakup Fee and Expense Reimbursement, which hearing Teton shall seek to be concluded and the Bidding Procedures Motion shall provide ("Bidding Procedures Order"): (aherein so called) Any competing bid must be for the Sale Assets only and must be flied with the Company, with a copy to Buyer, approved no later than seven (7) the close of business days after entry of on November 23, 2009. Teton shall seek to have the Bidding Procedures Order. provide that the Rise offer (iherein so called) Any competing bid to sponsor the Plan will be subject to higher and better offers ("Competing a “Qualified Bid") must be in the minimum amount of $14,000,000 and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"”), which sum Teton shall seek to be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000submitted no later December 14, 2009. The Competing determination of whether any bid submitted is a Qualified Bid shall be in writingmade by the Teton Entities, the Lenders (as hereinafter defined), and the creditors’ committee, if one is appointed. If one or more Qualified Bids is received, the Teton Entities shall seek to conduct an auction on December 15, 2009 (the “Auction”), at the conclusion of which the Teton Entities, the Lenders and creditors’ committee, if any, will select the Successful Bid (as herein so called). The determination by the Teton Entities, the Lenders and the creditors’ committee regarding the Successful Bid shall be delivered to counsel for conclusive. If Rise is selected as the Company with copies to counsel for person submitting the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Successful Bid, the Purchase Price under Section 3.1 Teton Entities shall be considered as having a cash value of $ 1 3,000,000 (proceed to confirm and consummate the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by BuyerPlan. If Rise is not selected as the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated highest and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered by the Bankruptcy Court, the Company or any other party in interest. In such event,.the Purchase Price set forth in Section 3.1 shall be amended to an amount equal to the Highest Competing Bid matched by Buyer and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase of the Sale Assets shall be as otherwise set forth in this Agreement subject to the amendment of the Purchase Price as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order by the Bankruptcy Court approving the sale of the Sale Assets to the Highest Competing Bidder (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent to the payment to Buyer of the sum of $500,000 as a Breakup Fee, and (y) Company shall pay to Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x). (c) Buyer's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not closebest bid, this Agreement shall be reinstatedautomatically terminate, at Buyer's optionand TEC shall promptly, upon written notice to but in no event more than twenty-four (24) hours after the Company. In such event, no competing bids shall be accepted by Company and the sale date of the Sale Assets Auction, (i) return the Deposit (as hereinafter defined) to Buyer shall be upon the terms Rise and conditions hereof with the closing to occur no later than sixty (60ii) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall promptly pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply Rise the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Price. (f) Upon execution of this Agreement, Company and Buyer shall confer with the Bankruptcy Court for the purposes of scheduling the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after (x) Buyer determines that the Bankruptcy Court is unable, in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) the Bankruptcy Court does not enter the Bidding Procedures Order or the Final Order as provided herein, Buyer may, in its sole discretion, terminate this Agreement Expense Reimbursement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as provided in this Section 9.3(g), Company and Buyer shall amend this Agreement in writing to extend funds from the Notices and Hearings and person submitting the dates for entry of the Bidding Procedures Order and Final OrderSuccessful Bid.

BIDDING PROCEDURES. No later than five (5a) business days after On the execution of this Asset Purchase Agreement by Buyer and Company, Company Petition Date Sellers shall file a motion (the “Bidding Procedures Motion”) with the Bankruptcy Court to establish seeking entry of an order (the “Bidding Procedures Order”) approving bidding procedures consistent with the terms of Section 1.03(b) of this Agreement and the additional detailed bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court on Schedule 1.03(a) ("Bidding Procedures Motion"). Company shall also request with such changes therein as the Bankruptcy Court may require that are not inconsistent with the express requirements of this Agreement and are reasonably satisfactory to reduce Purchaser, the notice period to parties in interest to fifteen (15) days“Bidding Procedures”). The order Bidding Procedures Order shall require that notices of all objections to the Bidding Procedures shall be served upon, among other parties, counsel to the Purchaser. Sellers shall request that the Bankruptcy Court approving hold the hearing on the Bidding Procedures as soon as practicable after the filing of the Bidding Procedures Motion shall provide ("Bidding Procedures Order"): (a) Any competing bid must be for the Sale Assets only and must be flied consistent with the Company, with a copy Federal Rules of Bankruptcy Procedure and applicable local rules (without requiring that the Sellers seek to Buyer, no later than seven (7) business days after entry of the Bidding Procedures Orderhave such hearing held on shortened or expedited notice). (b) The Bidding Procedures shall include the following and the other procedures set forth on Schedule 1.03(a): (i) Any competing bid In the event that this Agreement is terminated ("Competing Bid"A) must by either party pursuant to Sections 10.01(a), (c) or (f), or (B) by Purchaser pursuant to Sections 10.01(b), (d), (g), (h), (i) or (j), promptly following the closing of an Alternative Transaction, Sellers shall immediately pay or cause to be paid to Purchaser a breakup fee in cash equal to $1.5 million(the “Breakup Fee”) less any amounts paid to Purchaser pursuant to Section 1.03(b)(ii), provided that Purchaser was not in material breach of this Agreement at the minimum amount time of $14,000,000 and must such termination or at the time Sellers sought Bankruptcy Court approval of an Alternative Transaction. The Breakup Fee shall be accompanied by a cashier's check in no less than $2,000,000.00 payable only (A) from the proceeds payable to Sellers pursuant to an Alternative Transaction and (B) at the Escrow Agent (time of consummation of an Alternative Transaction. Upon payment of the "Deposit")Breakup Fee, which sum Sellers, their Affiliates, and their Representatives shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement fully released and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers discharged from any entity, including the entity submitting the Highest Competing Bid, shall be accepted liability or considered by the Bankruptcy Court, the Company obligation under or any resulting from this Agreement (other party in interest. In such event,.the Purchase Price than those set forth in Section 3.1 12.06) and Purchaser shall be amended not have any other remedy or cause of action under or relating to an amount equal to the Highest Competing Bid matched by Buyer and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase of the Sale Assets shall be as otherwise set forth in this Agreement subject to the amendment or any applicable Law including, without limitation, for reimbursement of the Purchase Price as above providedexpenses. (ii) If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order by the Bankruptcy Court approving the sale of the Sale Assets to the Highest Competing Bidder A) this Agreement is terminated (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent either party pursuant to the payment to Buyer of the sum of $500,000 as a Breakup Fee, and (ySections 10.01(a) Company shall pay to Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x). or (c) Buyer's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Price. (f) Upon execution of this Agreement, Company and Buyer shall confer with the Bankruptcy Court for the purposes of scheduling the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after (x) Buyer determines that the Bankruptcy Court is unable, in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) by Purchaser pursuant to Sections 10.01(b), (d), (g), (h), (i) or (j), and (B) Purchaser is not in material breach of this Agreement at the Bankruptcy Court does not enter time of such termination, and (C) Purchaser has tendered to Sellers written evidence of Purchaser’s willingness and ability to close the Bidding Procedures Order or transactions described in this Agreement on the Final Order as provided terms and conditions described herein, Buyer maySellers shall pay (in cash) to Purchaser an amount equal to the reasonable and documented costs and out-of-pocket expenses incurred by Purchaser in connection with its legal, in its sole discretionfinancial advisory, terminate accounting and business due diligence and the preparation and negotiation of this Agreement upon written notice in an amount not to exceed $500,000 (the Company“Expense Reimbursement”). In either event Buyer's Deposit Purchaser shall have a superpriority administrative expense claim in the amount of the Expense Reimbursement, and Sellers shall secure an agreement from the secured creditors with a first lien on substantially all of Sellers’ assets that the Expense Reimbursement shall be paid by Sellers from the secured creditors’ collateral. The Expense Reimbursement shall be paid to Purchaser not later than ten (10) Business Days after the Buyer by Escrow Agent within seventy-two (72first date on which the last of the conditions set forth in the first sentence of this Section 1.03(b)(ii) hours of Escrow Agent's receipt of Buyer's written notice requesting have been satisfied. Upon payment of Buyer's Deposit to it. If Buyer does not terminate the Expense Reimbursement, Sellers, their Affiliates, and their Representatives shall be fully released and discharged from any liability or obligation under or resulting from this Agreement as provided (other than those set forth in this Section 9.3(g), Company 12.06) and Buyer Purchaser shall amend not have any other remedy or cause of action under or relating to this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Orderor any applicable Law.

BIDDING PROCEDURES. No later than five (5) business days after the execution of this Asset Purchase Agreement by Buyer and Company, Company shall file a motion with the Bankruptcy Court to establish the bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court ("Bidding Procedures Motion"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order of the Bankruptcy Court approving the Bidding Procedures Motion shall provide ("Bidding Procedures Order"): (a) Any competing bid must be Buyer and Seller Parties acknowledge that this Agreement is the culmination of an extensive process undertaken by Seller Parties to identify and negotiate a transaction with a bidder who was prepared to pay the highest and best purchase price for the Sale Assets only assets of Seller and its Subsidiaries while assuming or otherwise satisfying specified liabilities in order to maximize value for each Seller Party's constituents. The parties also acknowledge that under the Bankruptcy Code, Seller Parties must be flied with take reasonable steps to demonstrate that they have sought to obtain the Companyhighest and best price possible for the assets, with a copy to Buyerincluding, no later than seven (7) business days after entry but not limited to, giving notice of the Bidding Procedures Order. (i) Any competing bid ("Competing Bid") must be in the minimum amount of $14,000,000 transactions contemplated by this Agreement to creditors and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered other interested parties as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered ordered by the Bankruptcy Court, providing information about the Company or any other party Acquired Business and Acquired Assets to responsible bidders subject to appropriate confidentiality agreements, entertaining higher and better offers from responsible bidders, and, if necessary, conducting an auction. To facilitate the foregoing, Seller Parties shall, within two Business Days of the date of this Agreement, seek the entry of an order (in interest. In such event,.the Purchase Price the form attached as EXHIBIT E) (a) approving the bidding procedures attached as EXHIBIT F (the "BIDDING PROCEDURES"), the amount, timing, terms of payment and priority of the Termination Amount as set forth in Section 3.1 shall be amended to an amount equal to the Highest Competing Bid matched by Buyer ARTICLE 8 and the respective rightsprovisions of SECTION 5.1 and (b) providing for, obligations and duties of Company and Buyer for Buyer's purchase among other things, the procedures set forth below (the "OVERBID PROCEDURES ORDER"). (b) Seller Parties shall give notice of the Sale Assets shall be as otherwise set forth in transactions contemplated by this Agreement subject and the Ancillary Agreements to the amendment of the Purchase Price such Persons and in such manner as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order by the Bankruptcy Court approving the sale of the Sale Assets to the Highest Competing Bidder (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent to the payment to Buyer of the sum of $500,000 as a Breakup Feedirect, and (y) Company shall pay to such additional Persons as Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x)requests. (c) Buyer's Deposit Unless this Agreement has been terminated in accordance with its terms, until the earlier of the entry of the Overbid Procedures Order and September 17, 2002, none of Seller Parties nor any of their Representatives shall be returned to Buyer (i) no later than one business day after a final order solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiry or the Bankruptcy Court denying the Sale Motion in favor making of Buyer any proposal that constitutes, or which approves the sale of the Sale Assets can reasonably be expected to a competing bidder or lead to, an Alternative Transaction; (ii) unless waived by Buyer,. by November 4participate in any discussions or negotiations that could possibly lead to an Alternative Transaction; (iii) enter into any agreement regarding a possible Alternative Transaction or (iv) make or authorize any statement, 1996recommendation or solicitation in support of a possible Alternative Transaction; PROVIDED, HOWEVER, that if the Bankruptcy Court has not entered Board of Directors of Seller determines in good faith that it is necessary to do so to comply with its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Price. (f) Upon execution of this Agreement, Company and Buyer shall confer with fiduciary duties under the Bankruptcy Court for the purposes of scheduling the notice periods Code or applicable corporate law, Seller Parties may, in response to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after an unsolicited inquiry: (x) Buyer determines provide public and non-public information concerning the Acquired Business and its assets to those Persons who first have delivered an inquiry meeting the requirements of the Bidding Procedures; PROVIDED that the Bankruptcy Court is unable, such Person executes a confidentiality agreement in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest Bidding Procedures; and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) participate in negotiations or discussions concerning such inquiry. Seller Parties shall promptly notify Buyer orally and in writing of all inquiries or proposals or requests for information received from any party, the Bankruptcy Court does not enter identity of the Bidding Procedures Order Person making such inquiry, proposal or request and provide copies of any written proposals. Seller Parties shall keep Buyer fully informed of the Final Order as provided hereinstatus (including amendments or proposed amendments) of any written proposal. Upon request by Buyer, Seller Parties will identify and furnish to Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as all information provided in this Section 9.3(g)response to any such inquiry, Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Orderproposal or request.

BIDDING PROCEDURES. No later than five On October [•], 2023 (5the “Petition Date”),2 Akumin Inc., and its debtor affiliates, as debtors and debtors in possession (collectively, the “Debtors”) business days after the execution filed voluntary petitions for relief under chapter 11 of this Asset Purchase Agreement by Buyer and Company, Company shall file a motion with the Bankruptcy Court to establish the bidding procedures set forth in this Section 9.3 and shall further provide all notices to parties in interest required by the Bankruptcy Code and Bankruptcy Rules of Court ("Bidding Procedures Motion"). Company shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order title 11 of the United States Code (the “Bankruptcy Court approving the Bidding Procedures Motion shall provide ("Bidding Procedures Order"): (aCode”) Any competing bid must be for the Sale Assets only and must be flied with the Company, with a copy to Buyer, no later than seven (7) business days after entry of the Bidding Procedures Order. (i) Any competing bid ("Competing Bid") must be in the minimum amount of $14,000,000 and must be accompanied by a cashier's check in no less than $2,000,000.00 payable to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement. Any party submitting a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing Bid, the Purchase Price under Section 3.1 shall be considered as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered by the Bankruptcy Court, the Company or any other party in interest. In such event,.the Purchase Price set forth in Section 3.1 shall be amended to an amount equal to the Highest Competing Bid matched by Buyer and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase of the Sale Assets shall be as otherwise set forth in this Agreement subject to the amendment of the Purchase Price as above provided. If the Buyer does not match the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order by the Bankruptcy Court approving the sale of the Sale Assets to the Highest Competing Bidder (x) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by the Escrow Agent to the payment to Buyer of the sum of $500,000 as a Breakup Fee, and (y) Company shall pay to Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x). (c) Buyer's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase Price. (f) Upon execution of this Agreement, Company and Buyer shall confer with the United States Bankruptcy Court for the purposes Southern District of scheduling Texas (the notice periods “Court”). The Debtors filed these chapter 11 cases after entering into a restructuring support agreement (the “RSA”) [Docket No. [•], Ex. [•]] with the support of their Prepetition Secured Lenders (as defined below) and other stakeholders. The RSA contemplates two potential restructuring paths: (a) a recapitalization transaction that would allow for substantial deleveraging and a new capital infusion to parties right size the Debtors’ balance sheet, as more fully described in interest the Prepackaged Plan and the hearings in connection with Disclosure Statement (the “Reorganization Transaction”) or (b) a Sale Transaction (as defined herein). Specifically, the RSA contemplates that the Debtors will continue their prepetition sale and marketing process, (the “Sale Process”) during these chapter 11 cases, and, if the Debtors receive bids or proposals for a potential transaction representing higher or otherwise better value for the Debtors and their stakeholders than the Reorganization Transaction, pursue such Sale Transaction. On October [•], 2023, the Court entered the Order (I) Approving the Bidding Procedures, (II) Scheduling Certain Dates with Respect thereto, (III) Approving the Form and Manner of Notice, (IV) Approving Contract Assumption and Assignment Procedures, (V) Authorizing the Debtors to Enter into Definitive Purchase Agreements, and (VI) Granting Related Relief [Docket No. [•]] (the “Bidding Procedures Order”), approving these Bidding 1 A complete list of each of the Debtors in these chapter 11 cases may be obtained on the website of the Debtors’ proposed claims and noticing agent at xxxxx://xx.xxxx00.xxx/Akumin. The Debtors’ service address is 0000 X. Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000. 2 Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Debtors’ Emergency Motion for Entry of an Order (I) Approving the Bidding Procedures, (II) Scheduling Certain Dates with Respect thereto, (III) Approving the Form and Sales Motion. Manner of Notice, (gIV) Within five business days after Approving the Contract Assumption and Assignment Procedures, (xV) Buyer determines that Authorizing the Debtors to Enter into Definitive Purchase Agreements, and (VI) Granting Related Relief [Docket No. [•]]. Procedures. These Bidding Procedures set forth the process by which the Debtors are authorized to continue their Sale Process for one or more sales of all, substantially all, or a material portion of the Debtors’ assets (collectively, the “Assets”) pursuant to section 363 of the Bankruptcy Court is unable, in accordance with Code (the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"“Sale Transaction”), or (y) the Bankruptcy Court does not enter the Bidding Procedures Order or the Final Order as provided herein, Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as provided in this Section 9.3(g), Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry Copies of the Bidding Procedures Order and Final Orderother related documents are available at xxxxx://xx.xxxx00.xxx/Akumin.

BIDDING PROCEDURES. No later than five (5) business days Promptly after the execution of this Asset Purchase Agreement by Buyer and CompanyAgreement, Company the Seller shall file a motion with the Bankruptcy Court to establish the a motion for approval of bidding procedures set forth in this Section 9.3 acceptable to the Purchaser pursuant to which the Seller will negotiate for higher and shall further provide all notices to parties in interest required by better bids for the Bankruptcy Code and Bankruptcy Rules of Court Assets ("the “Bidding Procedures Motion"Procedures”). Company Seller shall also request the Bankruptcy Court to reduce the notice period to parties in interest to fifteen (15) days. The order seek imposition of the Bankruptcy Court approving the Bidding Procedures Motion shall provide ("Bidding Procedures Order"):following requirements: (a) Any competing bid must the initial overbid shall be at least $1,000,000 in excess of the Purchase Price, and any subsequent bids shall be, at least, in increments of $250,000; (b) all bidders shall be required to execute and submit an asset purchase agreement substantially similar to, or more favorable from the Seller’s perspective than, this Agreement, including a requirement for an initial deposit of $2,600,000, but without the Sale Assets only and must be flied reimbursement or break-up fee provided for in Section 7.3(e); (c) provided that the Highest Bidder, if the Purchaser is not the Highest Bidder, shall have entered into an agreement with the CompanySeller substantially similar to the Confidentiality Agreement 2002 (including provisions substantially identical to Sections 7 and 11 thereof and including a provision that such agreement will be assigned to the Purchaser in the event that the Purchaser consummates the Closing), with the Seller may provide the Highest Bidder for a copy to Buyer, no later than seven (7) business period of 15 days after entry following the designation of the Bidding Procedures Order. Highest Bidder (ithe “Review Period”) Any competing bid ("Competing Bid") must be in with Customer Information relating to 10 customers selected by the minimum amount Seller. The Seller shall select only customers who have each previously entered into a Contract with the Seller for a term that extends for at least one year after the date of $14,000,000 and must be accompanied by a cashier's check in no less than $2,000,000.00 payable designation of the Highest Bidder. If, on or prior to the Escrow Agent (the "Deposit"), which sum shall be held by the Escrow Agent pursuant to the terms expiration of the Escrow Agreement. Any party submitting Review Period, such Highest Bidder does not provide a Competing Bid shall execute the Escrow Agreement and be bound by its terms. Any Competing Bid shall include a cash payment in the minimum amount of $14,000,000. The Competing Bid shall be in writing, and shall be delivered to counsel for the Company with copies to counsel for the Buyer, along with the Deposit to the Escrow Agent. (ii) Buyer may, by giving written termination notice to the Company, match the Highest Competing Bid ("Highest Competing Bid"). For the purposes of computing any match by Buyer of the Highest Competing BidSeller, the Purchase Price under Section 3.1 Sale to such Highest Bidder shall be considered as having a cash value of $ 1 3,000,000 (the sum of the Cash and the Debenture., which sum shall be included in any match of the Highest Competing Bid by Buyer. The Earn Out Payment under Section 3.1 (ill) above shall not be included in any match of the Highest Competing Bid by Buyer. If the Buyer matches the Highest Competing Bid, the bidding procedure or process shall be terminated and no additional bids or offers from any entity, including the entity submitting the Highest Competing Bid, shall be accepted or considered deemed authorized by the Bankruptcy Court, and this Agreement shall automatically terminate unless (i) the Company Purchaser, on or any other party in interest. In such event,.the Purchase Price set forth in Section 3.1 shall be amended to an amount equal prior to the Highest Competing Bid matched by Buyer and the respective rights, obligations and duties of Company and Buyer for Buyer's purchase expiration of the Sale Assets shall be as otherwise set forth in Review Period, provides a written request to the Seller that this Agreement subject to remain in effect, and (ii) the amendment of Seller accepts such request in writing, in which case this Agreement shall remain in effect and the Purchase Price shall remain the same as above provided. If it was prior to the Buyer does not match commencement of the Bidding Procedures; (d) if the Purchaser is the Highest Competing Bid (which must include a minimum cash payment of $14,000.,000),, then upon a final order Bidder the Sale to the Purchaser shall be deemed authorized by the Bankruptcy Court approving Court, and the Purchase Price shall be the Purchaser’s highest bid under the Bidding Procedures; and (e) if the Purchaser is not the Highest Bidder, and the Sale of the Assets is consummated to another buyer, and provided also that the Purchaser is not in default under this Agreement, Purchaser shall be reimbursed up to $150,000 in the aggregate of the Purchaser’s documented reasonable due diligence fees and reasonable out-of-pocket costs paid to third parties, including reasonable legal fees and reasonable out-of-pocket costs of negotiating and finalizing this Agreement, and Purchaser shall be paid a break-up fee of $475,000. The amounts to be paid to the Purchaser pursuant to this Section 7.3(e) shall be the sole remedy of the Purchaser against the Seller in connection with the sale of the Sale Assets to the Highest Competing Bidder (xBidder, and the Seller shall not have any other obligation or liability to the Purchaser in respect thereof. Any amounts owed to the Purchaser pursuant to this Section 7.3(e) $500,000 of the Deposit made by the Highest Competing Bidder shall become non-refundable and shall be applied by payable at the Escrow Agent to the payment to Buyer closing of the sum of $500,000 as a Breakup Fee, and (y) Company shall pay to Buyer the Breakup Fee of $500,000, which sum shall be paid by the Escrow Agent from the Deposit of the Highest Competing Bidder as provided by this Section 9.3(b)(ii)(x). (c) Buyer's Deposit shall be returned to Buyer (i) no later than one business day after a final order by the Bankruptcy Court denying the Sale Motion in favor of Buyer or which approves the sale of the Sale Assets to a competing bidder or (ii) unless waived by Buyer,. by November 4, 1996, if the Bankruptcy Court has not entered its Final Order approving the Sale Motion in favor of Buyer. (d) Any sale of Sale Assets to a competing bidder shall include a minimum cash payment of $14,000,000. (e) In the event the Buyer does not match the Highest Competing Bid and the sale of the Sale Assets to the party submitting the Highest Competing Bid does not close, this Agreement shall be reinstated, at Buyer's option, upon written notice to the Company. In such event, no competing bids shall be accepted by Company and the sale of the Sale Assets to Buyer shall be upon the terms and conditions hereof with the closing to occur no later than sixty (60) days after Company's receipt of Buyer's notice hereunder. In such event, Buyer shall pay the Buyer's Deposit to Escrow Agent to be held and distributed according to the terms hereof and the Escrow Agreement. In the event Buyer elects to reinstate this Agreement, Buyer may in its sole discretion apply the Breakup Fee to the Buyer's Deposit and the Cash portion of the Purchase PriceBidder. (f) Upon execution of this Agreement, Company and Buyer shall confer with the Bankruptcy Court for the purposes of scheduling the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion. (g) Within five business days after (x) Buyer determines that the Bankruptcy Court is unable, in accordance with the provisions of this Section 9, to schedule the notice periods to parties in interest and the hearings in connection with the Bidding Procedures Motion and Sales Motion ("Notices and Hearings"), or (y) the Bankruptcy Court does not enter the Bidding Procedures Order or the Final Order as provided herein, Buyer may, in its sole discretion, terminate this Agreement upon written notice to the Company. In either event Buyer's Deposit shall be paid to the Buyer by Escrow Agent within seventy-two (72) hours of Escrow Agent's receipt of Buyer's written notice requesting payment of Buyer's Deposit to it. If Buyer does not terminate this Agreement as provided in this Section 9.3(g), Company and Buyer shall amend this Agreement in writing to extend the Notices and Hearings and the dates for entry of the Bidding Procedures Order and Final Order.