Common use of No Solicitation of Alternative Transactions Clause in Contracts

No Solicitation of Alternative Transactions. (a) If this Agreement is the Successful Proposal, from and after the Auction Termination Date, each of the Companies agrees that neither it nor any of its officers or directors of the Board shall, and that it shall not authorize or permit its Representatives to, directly or indirectly, initiate, respond to, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Transaction, enter into negotiations in respect of, take any actions in furtherance of or enter into an Alternative Transaction. If this Agreement is the Successful Proposal, each of the Companies further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, provide any confidential information or data to, or engage in any negotiations with, any Person relating to an Alternative Transaction, or otherwise knowingly encourage or facilitate any effort or attempt by any Person to make or implement an Alternative Transaction. (b) Notwithstanding ‎Section 5.03(a), (i) if the Board determines in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with its fiduciary duties, each of the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given to, and received by, the Investor (the “Notice”), engage in negotiations or discussions with any Person that has made after the Auction Termination Date a bona fide, unsolicited written proposal with respect to an Alternative Transaction that the Board reasonably believes is likely to lead to a Superior Proposal, and furnish to such Person and its representatives confidential information or data relating to the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes of this Agreement, “Superior Proposal” means any bona fide, unsolicited written proposal with respect to an Alternative Transaction on terms that the Board determines in good faith by a majority vote, after considering the advice of its financial advisor and outside legal counsel and taking into account the economic and other terms and conditions of such proposal (including the conditions to closing), are more favorable and provide greater value to the constituents than provided hereunder, which the Board determines is reasonably likely to be consummated and for which financing, if a cash transaction (whether in whole or in part), is then fully committed or reasonably determined to be available by the Board.

No Solicitation of Alternative Transactions. (a) If For the period commencing on the date of this Agreement is and ending on the Successful Proposal, from and after the Auction Termination Expiration Date, each of the Companies agrees that neither it nor any of its officers or directors of the Board shall, and that it Stockholder shall not authorize or permit its Representatives tonot, directly or indirectly, initiate, respond take any action to, solicit and the Stockholder shall use its reasonable best efforts to cause its agents and representatives (including investment bankers, attorneys or knowingly accountants) not to, (a) encourage (including by way of furnishing non-public information), solicit, initiate or facilitate any Acquisition Proposal, (b) enter into any agreement with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement or the Merger Agreement or (c) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or offer with respect could reasonably be expected to an Alternative Transaction, enter into negotiations in respect of, take any actions in furtherance of or enter into an Alternative Transaction. If this Agreement is the Successful Proposal, each of the Companies further agrees that it shall not, and that it shall cause its Representatives not lead to, directly or indirectly, provide any confidential information or data to, or engage in any negotiations with, any Person relating to an Alternative Transaction, or otherwise knowingly encourage or facilitate any effort or attempt by any Person to make or implement an Alternative Transaction. (b) Notwithstanding ‎Section 5.03(a), (i) if Acquisition Proposal. Upon the Board determines in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with its fiduciary duties, each of the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given to, and received by, the Investor (the “Notice”), engage in negotiations or discussions with any Person that has made after the Auction Termination Date a bona fide, unsolicited written proposal with respect to an Alternative Transaction that the Board reasonably believes is likely to lead to a Superior Proposal, and furnish to such Person and its representatives confidential information or data relating to the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes execution of this Agreement, “Superior Proposal” means the Stockholder shall cease immediately and cause to be terminated any bona fideand all existing discussions or negotiations, unsolicited written proposal if any, with any parties conducted heretofore by the Stockholder with respect to an Alternative Transaction on any Acquisition Proposal and promptly request that all confidential information with respect thereto furnished by the Stockholder be returned. The Stockholder shall, as promptly as practicable (and in no event later than 24 hours after receipt thereof), advise Parent of any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that the Board determines it may receive in good faith by respect of any such potential Acquisition Proposal, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, and shall furnish to Parent a majority vote, after considering the advice copy of its financial advisor and outside legal counsel and taking into account the economic and other terms and conditions of any such proposal (including the conditions or inquiry, if it is in writing, or a written summary of any such proposal or inquiry, if it is not in writing, and shall keep Parent fully informed on a prompt basis with respect to closing), are more favorable and provide greater value any developments with respect to the constituents than provided hereunder, which the Board determines is reasonably likely to be consummated and for which financing, if a cash transaction (whether in whole or in part), is then fully committed or reasonably determined to be available by the Boardforegoing.

No Solicitation of Alternative Transactions. (a) If this Agreement is the Successful Proposal, from and after the Auction Termination Date, each of the Companies agrees that neither it nor any of its officers or directors of the Board shall, and that it shall not authorize or permit its Representatives to, directly or indirectly, initiate, respond to, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Transaction, enter into negotiations in respect of, take any actions in furtherance of or enter into an Alternative Transaction. If this Agreement is the Successful Proposal, each of the Companies further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, provide any confidential information or data to, or engage in any negotiations with, any Person relating to an Alternative Transaction, or otherwise knowingly encourage or facilitate any effort or attempt by any Person to make or implement an Alternative Transaction. (b) Notwithstanding ‎Section Section 5.03(a), (i) if the Board determines in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with its fiduciary duties, each of the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given to, and received by, the Investor (the “Notice”), engage in negotiations or discussions with any Person that has made after the Auction Termination Date a bona fide, unsolicited written proposal with respect to an Alternative Transaction that the Board reasonably believes is likely to lead to a Superior Proposal, and furnish to such Person and its representatives confidential information or data relating to the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes of this Agreement, “Superior Proposal” means any bona fide, unsolicited written proposal with respect to an Alternative Transaction on terms that the Board determines in good faith by a majority vote, after considering the advice of its financial advisor and outside legal counsel and taking into account the economic and other terms and conditions of such proposal (including the conditions to closing), are more favorable and provide greater value to the constituents than provided hereunder, which the Board determines is reasonably likely to be consummated and for which financing, if a cash transaction (whether in whole or in part), is then fully committed or reasonably determined to be available by the Board.

No Solicitation of Alternative Transactions. (a) If Solely during the period commencing on the Agreement Date and continuing until the earlier of (x) the date that the Bankruptcy Court has entered the Bidding Procedures Order and (y) the termination of this Agreement is in accordance with Article 8 (the Successful Proposal“No-Shop Period”), from and after the Auction Termination Date, each of the Companies agrees that neither it nor any of its officers or directors of the Board shall, and that it Sellers shall not authorize or permit its (and shall cause their respective Representatives not to, ) directly or indirectlyindirectly (i) solicit, initiate, intentionally encourage, respond to, or take any other action designed to solicit an Alternative Transaction, (ii) enter into negotiations with respect to, or knowingly encourage execute, any letter of intent, agreement in principle, acquisition agreement or facilitate other similar agreement related to any inquiries Alternative Transaction or the making of (iii) furnish non-public information to any proposal Person or offer entity with respect to an Alternative Transaction. From and after the date the Bidding Procedures Order is entered by the Bankruptcy Court and until the entry of the Sale Order, Sellers are permitted, and are permitted to cause their Affiliates and Representatives, to initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, and enter into any discussions or negotiations in respect of, take regarding any actions in furtherance of or enter into an Alternative Transaction. If this Agreement is the Successful Proposal, each of the Companies further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, provide any confidential information or data to, or engage in any negotiations foregoing with, any Person (in addition to Buyer and its Affiliates and Representatives) in connection with any Alternative Transaction. In addition, Sellers may supply information relating to the Business and the Acquired Assets to prospective purchasers; provided, that no non-public information may be furnished until Sellers receive an Alternative Transaction, or otherwise knowingly encourage or facilitate executed confidentiality agreement from any effort or attempt by any such Person to make or implement an Alternative Transactioncontaining terms and provisions as described in the Bidding Procedures. (b) Notwithstanding ‎Section 5.03(a), (i) if the Board determines in good faith, after consultation with outside legal counsel that the failure to take such action would be inconsistent with its fiduciary duties, each of the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given toIf an Auction is conducted, and received byBuyer is not the prevailing party at the conclusion of such Auction (such prevailing party, the Investor (the “NoticeSuccessful Bidder”), engage in negotiations Buyer shall be required to serve as the back-up bidder if Buyer is the next highest or discussions with any Person that has made after otherwise best bidder at the Auction Termination Date a bona fide(such party that is the next highest or otherwise best bidder at the Auction, unsolicited written proposal with respect the “Back-Up Bidder”) and, if Buyer is the Back-Up Bidder, Buyer shall, notwithstanding Section 8.1(b)(iii), be required to an Alternative Transaction that keep its bid to consummate the Board reasonably believes is likely to lead to a Superior Proposal, and furnish to such Person and its representatives confidential information or data relating to transactions contemplated by this Agreement on the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes of this Agreement, “Superior Proposal” means any bona fide, unsolicited written proposal with respect to an Alternative Transaction on terms that the Board determines in good faith by a majority vote, after considering the advice of its financial advisor and outside legal counsel and taking into account the economic and other terms and conditions set forth in this Agreement (as the same may be improved upon by the Buyer in the Auction) open and irrevocable until the Outside Back-Up Date. Following the Auction, if the Successful Bidder fails to consummate the applicable Alternative Transaction as a result of a breach or failure to perform on the part of such proposal (including the conditions to closing)Successful Bidder, are more favorable and provide greater value to the constituents than provided hereunder, which the Board determines is reasonably likely to be consummated and for which financingthen Buyer, if a cash transaction Buyer is the Back-Up Bidder, will be deemed to have the new prevailing bid, and Sellers will be authorized, without further order of the Bankruptcy Court, to consummate the transactions contemplated by this Agreement on the terms and conditions set forth in this Agreement (whether in whole or in part), is then fully committed or reasonably determined to as the same may be available improved upon by the BoardBuyer in the Auction) with the Back-Up Bidder.

No Solicitation of Alternative Transactions. (a) If Until the earlier of the Closing and such time as this Agreement is terminated in accordance with Article VII (such period, the Successful Proposal“No-Shop Period”), from and after the Auction Termination Date, each of the Companies agrees that neither it nor any of its officers or directors of the Board no Seller shall, and that it shall not authorize or permit its Representatives to, directly or indirectly, initiate, respond to, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Transaction, enter into negotiations in respect of, take any actions in furtherance of or enter into an Alternative Transaction. If this Agreement is the Successful Proposal, each of the Companies further agrees that it shall not, and that it Seller shall cause its respective Representatives and Affiliates not to, directly or indirectly, provide (i) solicit, initiate or knowingly encourage any confidential inquiry, proposal or offer (each, a “Proposal”) relating to a transaction involving the acquisition of (A) all or a substantial portion of the assets of the Company or any of its Subsidiaries, (B) any equity interests of the Company or any of its Subsidiaries, or (C) any joint venture or other strategic investment in or involving the Company or any of its Subsidiaries ((A), (B) and (C), each, an “Alternative Transaction”), (ii) enter into, participate in or encourage any discussions or negotiations relating to, or disclose, furnish or afford access to any information concerning the Sellers or data the Business (including the Sellers’ personnel, businesses, properties, books or records) in connection with, or assist, or cooperate with any Person in making or proposing, or take any other action to facilitate, any Proposal or Alternative Transaction, or (iii) authorize or enter into any agreement or understanding (whether binding or nonbinding, written or oral) relating to, or engage in any negotiations withor consummate, any Person relating to an Proposal or Alternative Transaction; provided, however, that, from and after the date the Bankruptcy Court enters the Scheduling Order, the foregoing shall not restrict, prohibit or otherwise knowingly encourage limit Sellers or facilitate any effort of their respective Representatives or attempt Affiliates from responding to (including by furnishing information to (in which case Sellers shall furnish Buyer with any Person such information not previously furnished to make Buyer)) and entering into discussions or implement negotiations with any third parties who, absent any such prior encouragement, solicitation or initiation of any inquiries regarding a Proposal or Alternative Transaction by Sellers in violation of this Section 5.20(a), contact the Sellers with respect to an Alternative Transaction. (b) Notwithstanding ‎Section 5.03(aIf any of the Sellers or their respective Affiliates or their respective Representatives, during the No-Shop Period, receives any Proposal, or any request for disclosure or access as referenced in Section 5.20(a), (i) if the Board determines in good faithsuch Seller shall, after consultation with outside legal counsel that the failure to take such action would be inconsistent with and shall cause its fiduciary duties, each of the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given Representatives and Affiliates and its and its Affiliates’ Representatives to, and received bywithin forty-eight (48) hours of receipt of such Proposal or request, the Investor (the “Notice”), engage in negotiations inform Buyer regarding such Proposal or discussions with any Person that has made after the Auction Termination Date a bona fide, unsolicited written proposal with respect to an Alternative Transaction that the Board reasonably believes is likely to lead to a Superior Proposalrequest, and furnish to such Person and its representatives confidential information or data relating to the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes of this Agreement, “Superior Proposal” means any bona fide, unsolicited written proposal Buyer with respect to an Alternative Transaction on terms that the Board determines in good faith by a majority vote, after considering the advice of its financial advisor and outside legal counsel and taking into account the economic and other terms and conditions copy of such proposal Proposal or request or, if not in writing, with a reasonably detailed description thereof (including including, in the conditions to closingcase of the receipt of a Proposal or if the Sellers provide disclosure or access as referenced in Section 5.20(a), are more favorable and provide greater value the name of the Person that sent the Proposal or to the constituents than provided hereunder, which the Board determines is reasonably likely to be consummated and for which financing, if a cash transaction (whether in whole whom disclosure or in partaccess was provided), is then fully committed or and shall keep Buyer reasonably determined to be available by informed of the Boardstatus and details of any future notices.

No Solicitation of Alternative Transactions. (a) If Except as set forth in this Agreement is the Successful ProposalSection 8.2, from and after the Auction Termination Date, each of the Companies agrees that neither it Radio Unica nor any Affiliates of its officers or directors of Radio Unica shall (and Radio Unica and the Board shall, and that it shall not authorize or permit its Representatives to, directly or indirectly, initiate, respond to, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Transaction, enter into negotiations in respect of, take any actions in furtherance of or enter into an Alternative Transaction. If this Agreement is the Successful Proposal, each of the Companies further agrees that it shall not, and that it Sellers shall cause its Representatives their Affiliates and use their reasonable best efforts to cause their and their Affiliates' respective stockholders, officers, directors, employees, financial advisors, investment bankers, attorneys, accountants or other representatives or agents (collectively, "REPRESENTATIVES") not to, directly or indirectly, provide (i) solicit, initiate, seek, assist or encourage the submission of any confidential information or data to, or engage in any negotiations with, any Person relating to proposal for an Alternative Transaction, or (ii) except as determined by the Board of Directors in good faith to be necessary or advisable to satisfy the fiduciary duties of the Board of Directors under applicable Law, after consultation with outside legal counsel and financial advisors, in response to any bona fide written proposal for an Alternative Transaction which did not result from a breach of Section 8.2(a)(i), participate in any discussions or negotiations regarding, or furnish to any Person, any information (PROVIDED that, prior to furnishing such information, Radio Unica enters into a customary confidentiality agreement on terms no less favorable to Radio Unica than those contained in the Confidentiality Agreement) with respect to, or otherwise knowingly encourage cooperate in any way with respect to, any bona fide written proposal for an Alternative Transaction. Radio Unica and the Sellers shall, and shall direct or facilitate cause their Representatives to, immediately cease and cause to be terminated any effort discussions or attempt by negotiations with any Person Persons that may be ongoing with respect to make or implement an any Alternative Transaction. (b) Notwithstanding ‎Section 5.03(a), The Board of Directors shall not (i) if withhold, withdraw, amend, change or modify, or publicly propose to withhold, withdraw, amend, change or modify, in a manner adverse to the Purchaser, the approval or recommendation by the Board of Directors of this Agreement, (ii) approve or recommend, or publicly propose to approve or recommend, any Alternative Transaction or (iii) cause or permit Radio Unica or any Affiliate of Radio Unica to enter into any letter of intent or any agreement, contract or commitment with respect to any Alternative Transaction ("ALTERNATIVE AGREEMENT") or seek Bankruptcy Court approval of an Alternative Agreement or Alternative Transaction; PROVIDED, HOWEVER, the Board of Directors may take any of the actions referred to above in this Section 8.2(b) with regard to a Superior Proposal in the event that the Board of Directors determines in good faithfaith that such action is necessary or advisable to satisfy its fiduciary duties under applicable Law, after consultation with outside legal counsel that and financial advisors; PROVIDED that, prior to or contemporaneous with taking any action referred to in clause (iii) above with regard to an Alternative Transaction, Radio Unica has provided the failure notice required by the last sentence of subparagraph (c) below and the Board of Directors shall cause Radio Unica to take such action would be inconsistent with its fiduciary dutiesterminate this Agreement pursuant to Section 10.1(f) hereof. (c) Radio Unica shall, each within twenty-four (24) hours of receipt thereof, advise the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given to, and received by, the Investor Purchaser of (the “Notice”), engage in negotiations or discussions with i) any Person that has made after the Auction Termination Date a bona fide, unsolicited written proposal with respect relating to an Alternative Transaction that the Board reasonably believes is likely to lead to a Superior Proposal, and furnish to such Person and its representatives confidential or written request for information or data relating to the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes of this Agreement, “Superior Proposal” means any bona fide, unsolicited written proposal with respect to an any Alternative Transaction on terms that Transaction, the Board determines in good faith by a majority vote, after considering the advice of its financial advisor and outside legal counsel and taking into account the economic and other material terms and conditions of such proposed Alternative Transaction or request and the identity of the Person proposing such Alternative Transaction or request for information and (ii) any changes in any such proposal relating to an Alternative Transaction or request for information. Radio Unica shall provide the Purchaser with at least three (including 3) Business Days written notice prior to Radio Unica or any of the conditions Sellers entering into any Alternative Agreement or exercising any right to closingterminate this Agreement pursuant to Section 10.1(f) hereof, together with a copy of the Alternative Agreement. (d) As used herein, (i) "ALTERNATIVE TRANSACTION" shall mean any transaction with any Person other than the Purchaser or any Affiliate of the Purchaser relating to the direct or indirect sale, transfer or other disposition of any material portion of the Purchased Assets or any Acquired Station, or fifty percent (50%) or more of the equity securities of the Sellers or Radio Unica (by means of sale, merger consolidation, liquidation, exchange or other business combination) and (ii) "SUPERIOR PROPOSAL" shall mean a bona fide, written proposal by a third party for an Alternative Transaction with terms that the Board of Directors determines in good faith (after receiving advice of Radio Unica's outside financial adviser), are taking into account all relevant aspects of the proposal and the Person making the proposal, (x) would, if consummated, result in a transaction that is more favorable to Radio Unica's stakeholders than the transactions contemplated by this Agreement, and provide greater value to the constituents than provided hereunder, which the Board determines is (y) are reasonably likely to be consummated and for which financing, if a cash transaction (whether in whole or in part), is then fully committed or reasonably determined to be available by the Boardcapable of being completed.

No Solicitation of Alternative Transactions. (a) If Solely during the period commencing on the Agreement Date and continuing until the earlier of (x) the date that the Bankruptcy Court has entered the Bidding Procedures Order and (y) the termination of this Agreement is in accordance with Article 8 (the Successful Proposal“No-Shop Period”), from and after the Auction Termination Date, each of the Companies agrees that neither it nor any of its officers or directors of the Board shall, and that it Sellers shall not authorize or permit its (and shall cause their respective Representatives and Affiliates not to, ) directly or indirectlyindirectly (i) solicit, initiate, encourage, respond to, or take any other action designed to solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to an Alternative Transaction, (ii) enter into negotiations with respect to, or execute, any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Transaction or (iii) furnish information to any Person or entity with respect ofto Aegean, take any actions in furtherance of the other Sellers, their respective Affiliates, the Business or enter into an Alternative Transaction; provided, however, that Sellers (and their respective Representatives and Affiliates) may respond to, enter into negotiations with and furnish information to any third party who submits an unsolicited, bona fide inquiry and for which Sellers determine in good faith, after receiving advice from outside legal counsel, that failure to participate in negotiations with or provide information to would result in a breach of fiduciary duties. If this Agreement During the No-Shop Period, Aegean will promptly (and in all events within 24 hours) notify in writing Buyer of any other offer, proposal or expression of interest for or in relation to an Alternative Transaction that it or any of its Affiliates or Representatives may receive and will reasonably cooperate with Buyer with respect thereto. From and after the date the Bidding Procedures Order is entered by the Successful Proposal, each Bankruptcy Court and until the entry of the Companies further agrees that it shall notSale Order, Sellers are permitted, and that it shall are permitted to cause its Representatives not totheir Affiliates and Representatives, directly to initiate contact with, solicit or indirectlyencourage submission of any inquiries, provide proposals or offers by, respond to any confidential information unsolicited inquiries, proposals or data tooffers submitted by, and enter into any discussions or engage in negotiations regarding any negotiations of the foregoing with, any Person (in addition to Buyer and its Affiliates and Representatives) in connection with or for purposes of pursuing any Alternative Transaction, in each case solely to the extent permitted and in accordance with the Bidding Procedures Order. In addition, Sellers may supply information relating to the Business and the Acquired Assets to any other Person who may be or has expressed interest in being a prospective purchaser under an Alternative Transaction or who proposed to submit an Alternative Transaction; provided, or otherwise knowingly encourage or facilitate that no non-public information may be furnished until Sellers receive an executed confidentiality agreement from any effort or attempt by such Person; provided, further, that any Person to make or implement an Alternative Transactionsuch disclosure shall only be made in accordance with the Bidding Procedures Order. (b) Notwithstanding ‎Section 5.03(aIf an Auction is conducted, and Buyer is not the Successful Bidder, Buyer shall, in accordance with and subject to the Bidding Procedures, be required to serve as the back-up bidder if Buyer is the next highest or otherwise best bidder at the Auction (such party that is the next highest or otherwise best bidder at the Auction, the “Back-Up Bidder”) and, if Buyer is the Back-Up Bidder, Buyer shall, notwithstanding Section 8.1(b)(ii), (i) if be required to keep its bid to consummate the Board determines in good faith, after consultation with outside legal counsel that Transactions on the failure to take such action would be inconsistent with its fiduciary duties, each of the Companies, directly or indirectly through advisors, agents or other intermediaries, may, upon written notice given to, and received by, the Investor (the “Notice”), engage in negotiations or discussions with any Person that has made after the Auction Termination Date a bona fide, unsolicited written proposal with respect to an Alternative Transaction that the Board reasonably believes is likely to lead to a Superior Proposal, and furnish to such Person and its representatives confidential information or data relating to the Company or any of its Subsidiaries and (ii) the Company may take any other action that the Bankruptcy Court or any other court of competent jurisdiction orders such Person to take. For purposes of this Agreement, “Superior Proposal” means any bona fide, unsolicited written proposal with respect to an Alternative Transaction on terms that the Board determines in good faith by a majority vote, after considering the advice of its financial advisor and outside legal counsel and taking into account the economic and other terms and conditions set forth in this Agreement (as the same may be improved upon by Buyer in the Auction) open and irrevocable until the Outside Back-Up Date. Following the Auction, if the Successful Bidder fails to consummate the applicable Alternative Transaction as a result of a breach or failure to perform on the part of such proposal (including the conditions to closing)Successful Bidder, are more favorable and provide greater value to the constituents than provided hereunder, which the Board determines is reasonably likely to be consummated and for which financingthen Buyer, if a cash transaction Buyer is the Back-Up Bidder, will be deemed to have the new prevailing bid, and Sellers may seek authority to consummate the Transactions on the terms and conditions set forth in this Agreement (whether as the same may be improved upon by Buyer in whole or in part), is then fully committed or reasonably determined to be available by the BoardAuction) with the Back-Up Bidder.