Common use of No Solicitation of Acquisition Proposals Clause in Contracts

No Solicitation of Acquisition Proposals. (a) From the date of this Agreement and prior to the earlier of the Effective Time or the termination of this Agreement, UWWH agrees that neither it nor any of its Subsidiaries shall, and UWWH shall cause its Representatives, agents and other intermediaries (including any accountants, financial or legal advisors or other consultants) not to, (i) directly or indirectly, solicit, initiate or encourage any inquiry or proposal that constitutes or could reasonably be expected to lead to a UWWH Acquisition Proposal, (ii) provide any non-public information or data to any Person relating to or in connection with a UWWH Acquisition Proposal, (iii) waive, amend or modify any standstill or confidentiality agreement (other than the Confidentiality Agreement or confidentiality agreements with any UWWH Employees) to which it or any of its Subsidiaries is a party in connection with a UWWH Acquisition Proposal, (iv) enter into, maintain or continue any discussions or negotiations concerning a UWWH Acquisition Proposal or (v) otherwise cooperate with, participate in or facilitate any effort or attempt to make or implement a UWWH Acquisition Proposal or approve, agree to, recommend or accept, or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any UWWH Acquisition Proposal and UWWH shall request the return of any Confidential Information distributed to any such parties in connection with any such activities, discussions or negotiations. UWWH shall promptly (and, in any event, within 48 hours) notify IP of the receipt of any UWWH Acquisition Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, a UWWH Acquisition Proposal, indicating, in each case, the identity of the Person or group making such UWWH Acquisition Proposal, inquiry, offer, proposal or request for information and a copy of any UWWH Acquisition Proposal made in writing and the material terms and conditions of a UWWH Acquisition Proposal not made in writing (including, in each case, as applicable, copies of any written requests, proposals or offers, including proposed agreements), and thereafter shall keep IP informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight hours), of the status and terms of any such UWWH Acquisition Proposal, inquiry, offer, proposal or request, including any material developments or modifications to the terms of any such UWWH Acquisition Proposal, inquiry, proposal, offer or request (including amendments thereto). (b) From the date of this Agreement and prior to the earlier of the Effective Time or the termination of this Agreement, each of IP and Spinco agrees that neither it nor any of their respective Subsidiaries, as applicable, shall, and each of IP and Spinco shall cause its respective Representatives, agents and other intermediaries (including any accountants, financial or legal advisors, or other consultants) not to, (i) directly or indirectly, solicit, initiate or encourage any inquiry or proposal that constitutes or could reasonably be expected to lead to a Spinco Acquisition Proposal, (ii) provide any non-public information or data to any Person relating to or in connection with a Spinco Acquisition Proposal, (iii) waive, amend or modify any standstill or confidentiality agreement (other than the Confidentiality Agreement or confidentiality agreements with any Spinco Group Employees) to which it or any of its Subsidiaries, is a party relating primarily to the Spinco Business in connection with a Spinco Acquisition Proposal, (iv) enter into, maintain or continue any discussions or negotiations concerning a Spinco Acquisition Proposal or (v) otherwise cooperate with, participate in or facilitate any effort or attempt to make or implement a Spinco Acquisition Proposal or approve, agree to, recommend or accept or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Spinco Acquisition Proposal and each of IP and Spinco shall request the return of any Confidential Information distributed to any such parties in connection with any such activities, discussions or negotiations. IP and Spinco shall promptly (and, in any event, within 48 hours) notify UWWH of the receipt of any Spinco Acquisition Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, a Spinco Acquisition Proposal, indicating, in each case, the identity of the Person or group making such Spinco Acquisition Proposal, inquiry, offer, proposal or request for information and a copy of any Spinco Acquisition Proposal made in writing and the material terms and conditions of a Spinco Acquisition Proposal not made in writing (including, in each case, as applicable, copies of any written requests, proposals or offers, including proposed agreements), and thereafter shall keep UWWH informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight hours), of the status and terms of any such Spinco Acquisition Proposal, inquiry, offer, proposal or request, including any material developments or modifications to the terms of any such Spinco Acquisition Proposal, inquiry, proposal, offer or request (including amendments thereto).

No Solicitation of Acquisition Proposals. (a) From the date of this Agreement and prior to the earlier of until the Effective Time or or, if earlier, the termination of this AgreementAgreement in accordance with Section 7.1, UWWH agrees that except as otherwise provided in this Section 5.3, neither it nor any of its Subsidiaries Telkonet Company shall, and UWWH shall cause its Representatives, agents and other intermediaries (including any accountants, financial or legal advisors or other consultants) not to, (i) directly or indirectly, nor shall either Telkonet Company direct their respective Representatives to (i) solicit, initiate or encourage knowingly encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal, (ii) furnish any nonpublic information regarding either of the Telkonet Companies to any Person in connection with or in response to an Acquisition Proposal or an inquiry or proposal indication of interest with respect to a potential Acquisition Proposal, (iii) engage in negotiations with any Person with respect to any Acquisition Proposal, or (iv) enter into any Acquisition Agreement; provided, however, that prior to the Required Telkonet Shareholder Vote, this Section 5.3(a) shall not prohibit Telkonet from furnishing nonpublic information regarding the Telkonet Companies to, or entering into discussions with, any Person (including such Person’s Representatives and financing sources), or entering into an Acceptable Confidentiality Agreement with any Person, in response to a Superior Proposal or an Acquisition Proposal that the Telkonet Board reasonably believes is likely to result in a Superior Proposal if (1) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.3, (2) the Telkonet Board concludes in good faith, after consultation with its outside legal counsel, that such action is required for the Telkonet Board to comply with its fiduciary obligations to Telkonet’s shareholders under applicable Law, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Telkonet gives VDA written notice of the identity of such Person, the material terms thereof and any term sheet, letter of intent or similar document and draft Acquisition Agreement or financing documents related thereto and Telkonet’s intention to furnish nonpublic information to, or enter into discussions with, such Person (subject, in each case, to the terms of any Acceptable Confidentiality Agreement), and Telkonet receives from such Person an executed Acceptable Confidentiality Agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Telkonet, and (4) at least 48 hours prior to furnishing any such nonpublic information to such Person, Telkonet furnishes such nonpublic information to VDA (to the extent such nonpublic information has not been previously furnished or made available by Telkonet to VDA). For the avoidance of doubt, it shall not be a violation of this Section 5.3(a) if the Telkonet Companies and/or their Representatives contact a third Person making any Acquisition Proposal which has been made without a violation of this Section 5.3 solely to clarify the terms and conditions of such Acquisition Proposal and to determine whether it constitutes or could reasonably be expected to lead to a UWWH Superior Proposal. (b) From and after the date of this Agreement, Telkonet shall promptly (and in no event later than three (3) Business Days after receipt of any Acquisition Proposal, any inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal) advise VDA orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, or indication of interest, and the material terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and shall provide VDA with any relevant documentation related thereto (within three (3) Business Days of receipt by the Telkonet Board), including but not limited to, proposed merger or other Acquisition Agreements, financing document, letters, or commitments, subject, in each case, to the terms of any Acceptable Confidentiality Agreement permitted under Section 5.3(a). Telkonet shall keep VDA reasonably informed with respect to the status of any such Acquisition Proposal, inquiry or indication of interest and any modification or proposed modification thereto. (c) Telkonet agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which either of the Telkonet Companies is a party, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of VDA; provided that notwithstanding the foregoing, Telkonet shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Telkonet Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under any applicable Law. Telkonet also will promptly request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return or destroy all confidential information heretofore furnished to such Person by or on behalf of either of the Telkonet Companies. (d) Except as expressly provided by Section 5.3(e), neither the Telkonet Board nor any committee thereof shall: (i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to VDA, the Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (iiC) provide any non-after the public information or data to any Person relating to or in connection with a UWWH announcement of the submission of an Acquisition Proposal, fail to publicly reaffirm the Board Recommendation within seven Business Days after VDA so requests in writing (iiiD) waivefail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within 10 Business Days after the commencement of such Acquisition Proposal on a Schedule TO or (E) fail to include the Board Recommendation in the Proxy Statement (any action described in clauses (A) through (E), amend a “Recommendation Change”); or modify (ii) cause or permit Telkonet or the Telkonet Subsidiary to enter into any standstill or confidentiality agreement Acquisition Agreement. (other than e) Notwithstanding anything to the Confidentiality Agreement or confidentiality agreements contrary set forth in this Agreement, at any time prior to obtaining the Required Telkonet Shareholder Vote, Telkonet may effect a Recommendation Change if the Telkonet Board has received an Acquisition Proposal that it determines in good faith (after consultation with any UWWH Employeesits independent financial advisors and outside legal counsel) constitutes a Superior Proposal and determines in good faith (after consultation with its independent financial advisors and legal counsel) that such action is required for the Telkonet Board to which it comply with its fiduciary obligations to Telkonet shareholders under applicable Law; provided, that (A) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 5.3 (B) Telkonet shall have given VDA at least two Business Days’ prior written notice of its intention to take such action, and if applicable, intends to cause Telkonet or any of its Subsidiaries is a party in connection with a UWWH to enter into such Acquisition Proposal, Agreement (iv) enter into, maintain or continue any discussions or negotiations concerning a UWWH Acquisition Proposal or (v) otherwise cooperate with, participate in or facilitate any effort or attempt to make or implement a UWWH Acquisition Proposal or approve, agree to, recommend or accept, or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any UWWH Acquisition Proposal and UWWH which notice shall request the return of any Confidential Information distributed to any such parties in connection with any such activities, discussions or negotiations. UWWH shall promptly (and, in any event, within 48 hours) notify IP of the receipt of any UWWH Acquisition Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, a UWWH Acquisition Proposal, indicating, in each case, the identity of the Person or group making such UWWH Acquisition Proposal, inquiry, offer, proposal or request for information and a copy of any UWWH Acquisition Proposal made in writing and specify the material terms and conditions of any such Superior Proposal and the identity of the party making such Superior Proposal) and, no later than the time of such notice, provided VDA a UWWH Acquisition Proposal copy of the relevant proposed transaction agreement and other material documents (including but not made in writing (includinglimited to any financing documents) with the party making such Superior Proposal, subject, in each case, as applicable, copies of any written requests, proposals or offers, including proposed agreements), and thereafter shall keep IP informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight hours), of the status and terms of any such UWWH Acquisition Proposal, inquiry, offer, proposal or request, including any material developments or modifications to the terms of any an Acceptable Confidentiality Agreement, (C) if requested by VDA, Telkonet shall have negotiated in good faith with VDA during such UWWH Acquisition Proposal, inquiry, proposal, offer or request (including amendments thereto). (b) From two Business Day notice period to enable VDA to propose changes to the date terms of this Agreement and prior that would cause such Superior Proposal to the earlier of the Effective Time or the termination of this Agreement, each of IP and Spinco agrees that neither it nor any of their respective Subsidiaries, as applicable, shall, and each of IP and Spinco shall cause its respective Representatives, agents and other intermediaries (including any accountants, financial or legal advisors, or other consultants) not to, (i) directly or indirectly, solicit, initiate or encourage any inquiry or proposal that constitutes or could reasonably be expected to lead to no longer constitute a Spinco Acquisition Superior Proposal, (iiD) provide the Telkonet Board shall have considered in good faith (after consultation with independent financial advisors and outside legal counsel), any non-public information or data changes to this Agreement proposed by VDA and determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect, and (E) in the event of any Person relating change to or in connection with a Spinco Acquisition the financial terms of such Superior Proposal, (iii) waive, amend or modify any standstill or confidentiality agreement (other than the Confidentiality Agreement or confidentiality agreements with any Spinco Group Employees) to which it or any of its Subsidiaries, is a party relating primarily to the Spinco Business in connection with a Spinco Acquisition Proposal, (iv) enter into, maintain or continue any discussions or negotiations concerning a Spinco Acquisition Proposal or (v) otherwise cooperate with, participate in or facilitate any effort or attempt to make or implement a Spinco Acquisition Proposal or approve, agree to, recommend or accept or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Spinco Acquisition Proposal and each of IP and Spinco shall request the return of any Confidential Information distributed to any such parties in connection with any such activities, discussions or negotiations. IP and Spinco shall promptly (and, in any event, within 48 hours) notify UWWH of the receipt of any Spinco Acquisition Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, a Spinco Acquisition Proposal, indicatingTelkonet shall, in each case, the identity have delivered to VDA an additional notice and copies of the Person or group making such Spinco Acquisition Proposal, inquiry, offer, proposal or request for information relevant proposed transaction agreement and a copy of any Spinco Acquisition Proposal made in writing other material documents and the material terms and conditions of a Spinco Acquisition Proposal not made in writing (includingtwo Business Day notice period shall have recommenced, subject, in each case, as applicable, copies of any written requests, proposals or offers, including proposed agreements), and thereafter shall keep UWWH informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight hours), of the status and terms of any such Spinco Acquisition Proposal, inquiry, offer, proposal or request, including any material developments or modifications to the terms of an Acceptable Confidentiality Agreement. (f) Nothing contained in this Section 5.3 shall be deemed to prohibit Telkonet or the Telkonet Board from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act, or (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, that in no event shall Telkonet or the Telkonet Board or any committee thereof take, agree or resolve to take any action prohibited by Section 5.3(e) (it being understood that a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed a modification of the Telkonet Board’s approval of the Contemplated Transactions and this Agreement or the Board’s recommendation that the shareholders approve the Amendment and the Securities Issuances), or (iii) making any other required disclosure to the Telkonet shareholders if the Telkonet Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with any applicable securities Laws, it being understood that nothing in the foregoing will be deemed to permit Telkonet or the Telkonet Board to effect a Recommendation Change other than in accordance with Section 5.3(e). (g) Nothing in this Agreement shall prohibit or restrict the Telkonet Board, in circumstances not involving or relating to an Acquisition Proposal (which for the avoidance of doubt is addressed in Sections 5.3(a)-(f)), from effecting a Recommendation Change in response to an Intervening Event, if, and only if, (i) the Telkonet Board (or a committee thereof) determines in good faith, after consultation with outside legal counsel, that the failure to make a Recommendation Change would reasonably be likely to be inconsistent with its fiduciary duties as directors under applicable Law, (ii) Telkonet has notified VDA in writing, at least two business days in advance of such Recommendation Change, that it is considering taking such action and specifying in reasonable detail the reasons therefore, and (iii) during such two business day period, Telkonet has considered, and at the reasonable request of VDA, engaged in good faith discussions with VDA regarding, any adjustments proposed in writing by VDA to the terms and conditions of this Agreement, should VDA propose any such Spinco Acquisition Proposaladjustments, inquiryand the Telkonet Board (or a committee thereof), proposalafter consultation with its outside legal counsel, offer or request (including amendments theretoshall have determined in good faith that such proposed changes do not obviate the need for the Telkonet Board to effect a Recommendation Change and that the failure to make a Recommendation Change would be inconsistent with its fiduciary duties as directors under applicable Law. For avoidance of doubt, a Recommendation Change due to an Intervening Event shall be deemed a Telkonet Triggering Event and shall entitle VDA to terminate this Agreement under Section 7.1(e)(ii), which will also require payment of the Telkonet Termination Fee as set forth in Section 7.3(b).