definiens: means an unsolicited bona fide written Acquisition Proposal ( with allreferences to 20 % in the definition of Acquisition Transaction being treated as references togreater than 50 % for these purposes ) that : ( a ) was not obtained or made as a direct or indirectresult of a breach of ( or in violation of ) this Agreement ; and ( b ) is on terms and conditions that theApricus Board or the Company Board, as applicable, determines in good faith, based on such99Exhibit 2.1matters that it deems relevant ( including the likelihood of consummation thereof ), as well as anywritten offer by the other Party to the Agreement to amend the terms of the Agreement, andfollowing consultation with its outside legal counsel and outside financial advisors, if any, aremore favorable, from a financial point of view, to Apricus ’ stockholders or the Company’sstockholders, as applicable, than the terms of the Contemplated Transactions ; provided, however, that any such offer shall not be deemed to be a if any financingrequired to consummate the transaction contemplated by such offer is not reasonably capable ofbeing obtained by such third party