Common use of Auction Process Clause in Contracts

Auction Process. The parties hereto acknowledge and agree that during the period commencing on the date hereof and ending on the date that any auction contemplated by the Bidding Procedures Order is declared closed by the Seller (the "Auction Period”), Seller and its Affiliates, officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted, but shall not be permitted at any time thereafter, to (i) market and solicit offers for the Acquired Assets and may issue press releases, place advertisements or make other releases or disclosures in connection therewith, (ii) solicit inquiries, proposals, offers or bids from, and negotiate with, any Persons other than the Buyer relating to the direct or indirect sale, transfer or other disposition, in one or more transactions, of all or substantially all of the Acquired Assets or the equity interests of the Seller and (iii) take any other affirmative action (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist with any such transaction with a third party (together with the transactions described in clause (ii) above, an "Alternative Transaction”); provided, however, the Seller and its Affiliates may enter into, and seek Bankruptcy Court approval of, a definitive agreement with respect to an Alternative Transaction only if such Alternative Transaction is a Superior Transaction. Without limiting the foregoing, during the Auction Period, the Seller and its Affiliates and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted to supply information relating to the Seller and the Acquired Assets to prospective purchasers. Except as set forth in Sections 2.8 and 8.3, neither the Seller nor any of its Affiliates shall have any liability to the Buyer, either under or relating to this Agreement or any Applicable Law, by virtue of entering into or seeking Bankruptcy Court approval of such definitive agreement for an Alternative Transaction pursuant to this Section 5.17 or for failure to comply with the obligations in Section 5.16. The Seller and the Buyer agree to comply in all material respects with the terms of the Bidding Procedures Order and agree that to the extent there is a conflict between this Agreement and the Bidding Procedures Order, the Bidding Procedures Order shall govern in all respects. Seller shall declare the Auction Period closed not later than August 30, 2005. Notwithstanding the foregoing but subject to the Buyer’s rights under Section 5.16 of this Agreement, the Buyer’s remedies for a failure of the Auction Period to end on August 30, 2005 shall be either (i) to seek specific performance of this Section 5.17 and the Bidding Procedures Order or (ii) to terminate this Agreement in accordance with Section 8.1(j).

Auction Process. The parties hereto acknowledge and agree that during the period commencing on the date hereof and ending on the date that any auction contemplated by the Bidding Procedures Order is declared closed by the Seller (the "Auction Period”"), Seller and its Affiliates, officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted, but shall not be permitted at any time thereafter, to (i) market and solicit offers for the Acquired Assets and may issue press releases, place advertisements or make other releases or disclosures in connection therewith, (ii) solicit inquiries, proposals, offers or bids from, and negotiate with, any Persons other than the Buyer relating to the direct or indirect sale, transfer or other disposition, in one or more transactions, of all or substantially all of the Acquired Assets or the equity interests of the Seller and (iii) take any other affirmative action (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist with any such transaction with a third party (together with the transactions described in clause (ii) above, an "Alternative Transaction”"); provided, however, the Seller and its Affiliates may enter into, and seek Bankruptcy Court approval of, a definitive agreement with respect to an Alternative Transaction only if such Alternative Transaction is a Superior Transaction. Without limiting the foregoing, during the Auction Period, the Seller and its Affiliates and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted to supply information relating to the Seller and the Acquired Assets to prospective purchasers. Except as set forth in Sections 2.8 and 8.3, neither the Seller nor any of its Affiliates shall have any liability to the Buyer, either under or relating to this Agreement or any Applicable Law, by virtue of entering into or seeking Bankruptcy Court approval of such definitive agreement for an Alternative Transaction pursuant to this Section 5.17 or for failure to comply with the obligations in Section 5.16. The Seller and the Buyer agree to comply in all material respects with the terms of the Bidding Procedures Order and agree that to the extent there is a conflict between this Agreement and the Bidding Procedures Order, the Bidding Procedures Order shall govern in all respects. Seller shall declare the Auction Period closed not later than August 30September 19, 2005. Notwithstanding the foregoing but subject to the Buyer’s rights under Section 5.16 of this Agreement, the Buyer’s remedies for a failure of the Auction Period to end on August 30September 19, 2005 shall be either (i) to seek specific performance of this Section 5.17 and the Bidding Procedures Order or (ii) to terminate this Agreement in accordance with Section 8.1(j).

Auction Process. The parties hereto acknowledge and agree that during (a) Following the period commencing on the date hereof and ending on the date that any execution of this Agreement, AEG shall commence an auction contemplated by the Bidding Procedures Order is declared closed by the Seller process (the "Auction Period”), Seller and its Affiliates, officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives Solicitation") whereby AEG shall be permitted, but shall not be permitted at any time thereafter, solicit from third ------------ parties offers to (i) market and solicit offers for the Acquired Assets and may issue press releases, place advertisements or make other releases or disclosures in connection therewith, (ii) solicit inquiries, proposals, offers or bids from, and negotiate with, any Persons other than the Buyer relating to the direct or indirect sale, transfer or other disposition, in one or more transactions, of all or substantially purchase all of the Acquired Assets or the equity interests of the Seller and businesses contemplated to be sold pursuant to this -77- Agreement (iiithe "Auction Businesses") take any other affirmative action for cash (including entering into any agreement or letter-of-intent with respect thereto) to cause, promote or assist with any such transaction offer received by ------------------ Seller, its employees, agents or representatives, a "Competing Offer"). Each --------------- party participating in the auction process as a bidder or a potential bidder, on behalf of itself and its advisors and agents, must agree to be bound by the procedures established by AEG in consultation with the Financial Advisors, and must agree that any determination by the AEG Board of Directors in consultation with the Financial Advisors is final and binding upon such party and that such party shall not, in any forum, institute any proceeding or action relating to such determination or otherwise challenge such determination. (b) If, at the expiration of the period for submitting Competing Offers established by the AEG Board of Directors in consultation with the Financial Advisors pursuant to the Solicitation (which expiration shall not be later than July 26, ▇▇▇▇), ▇▇▇ has received a Competing Offer that AEG's Board of Directors shall have determined, in consultation with the Financial Advisors, is superior to AEG relative to the transactions contemplated by this Agreement (a "Superior Offer") (it being agreed that a third party (together with submitting a Superior -------------- Offer must demonstrate to the satisfaction of the Board of Directors of AEG its financial capability to consummate the transactions contemplated by such offer), AEG shall give notice to Purchasers and the third party that has submitted the Highest Competing Offer (the "Other Bidder"), which notice (i) shall set forth ------------ the date on which the second round auction process described in clause Paragraph (c) of this Section 10.11 shall occur (which date shall be no later than July 28, 1999) and (ii) aboveto the extent the Board of Directors of AEG is applying a discount or premium to the nominal value of the Highest Competing Offer relative to the nominal value of the transactions contemplated by this Agreement, such notice shall include a quantification of such discount or premium, to the extent practicable, and an explanation of the factors causing the Board of Directors of AEG to apply such discount or premium. For purposes of this Agreement, "Alternative Transaction”); providedHighest Competing Offer" shall mean, however(i) if AEG shall have received only one Superior Offer, such Superior Offer, or (ii) if AEG shall have received more than one Superior Offer, the Seller and its Affiliates may enter intoSuperior Offer that the Board of Directors of AEG determines, and seek Bankruptcy Court approval ofin consultation with the Financial Advisors, a definitive agreement with respect is the most superior to an Alternative Transaction only if such Alternative Transaction is a Superior Transaction. Without limiting the foregoing, during the Auction Period, the Seller and its Affiliates and their respective officers, directors, employees, attorneys, investment bankers, accountants and other agents and representatives shall be permitted to supply information relating AEG relative to the Seller and the Acquired Assets transactions contemplated by this Agreement. AEG's notification to prospective purchasers. Except as set forth in Sections 2.8 and 8.3, neither the Seller nor any of its Affiliates shall have any liability to the Buyer, either under or relating to this Agreement or any Applicable Law, by virtue of entering into or seeking Bankruptcy Court approval of such definitive agreement for an Alternative Transaction Purchasers pursuant to this Section 5.17 or for failure to comply with 10.11(b) shall also set forth the obligations in Section 5.16. The Seller material terms and the Buyer agree to comply in all material respects with the terms conditions of the Bidding Procedures Order Highest Competing Offer and agree that shall be accompanied by (i) any written evidence provided to the Board of Directors of AEG by the Other Bidder of the Other Bidder's financial capability to consummate the transactions contemplated by the Highest Competing Offer or, to the extent there is are confidential terms, a conflict between this Agreement redacted version of such written evidence and the Bidding Procedures Order, the Bidding Procedures Order shall govern in all respects. Seller shall declare the Auction Period closed not later than August 30, 2005. Notwithstanding the foregoing but subject to the Buyer’s rights under Section 5.16 of this Agreement, the Buyer’s remedies for a failure of the Auction Period to end on August 30, 2005 shall be either (i) to seek specific performance of this Section 5.17 and the Bidding Procedures Order or (ii) to terminate this Agreement in accordance a full and complete copy of the contract negotiated by AEG with Section 8.1(j)the Other Bidder (the "Other Bidder Contract") and any related schedules, exhibits or --------------------- supplemental agreements between Seller and the Other Bidder.