Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement: (i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice; (ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and (iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith. (iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act; (v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 12 contracts
Samples: Merger Agreement (China Grand Resorts, Inc.), Merger Agreement (New York Global Innovations Inc.), Merger Agreement (iWallet Corp)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practicecourse; provided, however, that Parent shall take the steps necessary to have discontinued its existing business without liability to Parent or Acquisition Corp. as of the Closing Date;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-lawslaws other than to authorize the Parent to issue one or more series or classes of preferred stock in order to create therefrom the Parent Series A Preferred Stock which shall be issued at the Closing in the Private Placement; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of businessbusiness (except for dispositions in connection with Section 5.2(i) hereof); (C) incur additional Indebtedness or any other Liabilities liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contractcontract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreementforegoing, or (E) except as contemplated by this Agreement, enter into any Contractcontract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact neither the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined belowbelow for purposes of this paragraph). Parent will promptly advise the Company orally and in writing of any such inquiries or Acquisition Proposal proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. Corp or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. The Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and
Appears in 3 contracts
Samples: Merger Agreement (Electro Energy Inc), Merger Agreement (Electro Energy Inc), Merger Agreement (Electro Energy Inc)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate articles of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock, unless it is an Exempt Issuance; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 2 contracts
Samples: Merger Agreement (Smart Kids Group Inc.), Merger Agreement (Smart Kids Group Inc.)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate articles of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; except in the case of the April 27, 2011 corporate action to change the Parent’s name, increase the Parent’s authorized shares and forward split the Parent’s issued and outstanding shares 25 to1 that became effective on May 9, 2011, and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) except for the Offering, neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Samples: Merger Agreement (Pacific Syndicated Resources, Inc.)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Parent represents and warrants to the Company that Parent and Acquisition Corp. do not operate any business. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement or disclosed in any Schedule to this Agreement:
(ia) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practicecourse; provided, however, that Parent shall take the steps necessary to have discontinued its existing business without liability to Parent or Acquisition Corp. as of the Closing Date;
(iib) neither Parent nor Acquisition Corp. shall (Ai) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (Bii) amend its articles or certificate of incorporation or by-laws; or (Ciii) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iiic) neither Parent nor Acquisition Corp. shall (Ai) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (Bii) acquire or dispose of any assets other than in the ordinary course of businessbusiness (except for dispositions in connection with Section 5.2(a) hereof and the disposition of assets described in Schedule 5.2(c)(ii)); (Ciii) incur additional Indebtedness or any other Liabilities liabilities or enter into any other transaction except in the ordinary course of business; (Div) enter into any Contractcontract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreementforegoing, or (Ev) except as contemplated by this Agreement, enter into any Contractcontract, agreement, commitment or arrangement to dissolve, merge; , consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(vd) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined belowbelow for purposes of this paragraph). Parent will promptly advise the Company orally and in writing of any such inquiries or Acquisition Proposal proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and
(e) neither the Parent nor Acquisition Corp. will enter into any new employment agreements with any of their officers or employees or grant any increases in the compensation or benefits of their officers or employees.
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior (a) From the date of this Agreement to the Effective Time, unless the Company Parent shall otherwise agree in writing or except as otherwise contemplated expressly permitted by this Agreement:
(i) the set forth on Schedule 4.1 hereto, conduct its business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practicepractices. In addition, and without limiting the generality of the foregoing, except for matters set forth in Schedule 4.1 hereof or otherwise expressly permitted by the Merger Documents, from the date of this Agreement to the Effective Time, Parent shall not, and shall not permit any subsidiary to, take any corporate action including, without limitation, do any of the following without the prior written consent of Company:
(i) authorize, issue, sell, grant, pledge or otherwise dispose of or encumber (or propose to do any of the foregoing) any (A) of its capital stock, or any securities or rights convertible into its equity securities, or any warrants, calls, subscriptions, options or other rights to purchase or other similar agreements obligating it to issue any such capital stock or other convertible securities or (B) other securities in respect of, in lieu of, or in substitution for shares of capital stock of Parent or Acquisition Corp. outstanding on the date hereof;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stockstock or other equity interests, or any warrants, calls, subscriptions, options or other rights to acquire any capital stock or other equity interests, except pursuant to commitments in connection with the Merger Documents; (B) amend declare, set aside for payment or pay any dividend on, or make any other distribution (whether in cash or property, including additional shares of capital stock or other equity) in respect of, any of its certificate of incorporation capital stock or by-lawsother equity interests securities; or (C) split, combine combine, subdivide or reclassify any of its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iii) neither Parent nor Acquisition Corp. shall (A) issue incur any Indebtedness for borrowed money or agree to issue assume or guarantee any additional shares of, such Indebtedness or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire make any loans, advances or dispose capital contributions to, or investments in, any other Person;
(iv) enter into, renew, amend, modify, become subject to, or terminate any contract or agreement of Parent, or waive, release or assign any assets rights or claims thereunder (other than terminations of contracts or agreements as a result of the expiration of the term of such contracts or agreements);
(v) pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), except as required by Law or existing contract or agreement other than in the ordinary course of business; business consistent with past practice in an amount not to exceed $10,000 in the aggregate;
(A) commence litigation, investigation or arbitration proceedings or (B) compromise, settle, release, pay, discharge or compound any litigation, investigation, arbitration, proceeding or other claim or waive a right in relation to litigation, investigation or arbitration proceedings;
(vii) sell, lease, transfer, license, pledge or otherwise dispose of or mortgage or encumber or permit or suffer to exist any Lien on, any Leased Real Property or any of its other any of its properties or assets;
(viii) expressly cancel or waive any Indebtedness owed to or claims held by Parent;
(ix) commit to or make capital or research and development expenditures;
(x) make or agree to make any acquisition (including by merger or consolidation, purchase of substantial assets or equity interest, or by any other manner, in a single transaction or series of related transactions) of the capital stock or the assets of any other Person;
(xi) except as required to comply with applicable Law or as contemplated by this Agreement or agreements, plans or arrangements existing on the date hereof, (A) adopt, enter into, terminate or amend any Parent Employee Benefit Plans or any plan, agreement, program, policy, trust fund or other arrangement that would be a Parent Employee Benefit Plan if it were in existence as of the date of this Agreement, (B) increase the compensation or fringe benefits of any directors, officers or employees of Parent, (C) incur additional Indebtedness accelerate the payment, right to payment or vesting of any compensation or benefits, including any outstanding options or restricted stock awards or any other Liabilities equity-based compensation, (D) loan or advance any money or other property to any present or former director, officer or employee of Parent, (E) grant any equity or equity-based awards, (F) increase the funding obligation or contribution rate of any Parent Employee Benefit Plans subject to Title IV of ERISA, or (G) allow for the commencement of any new offering periods under any employee stock purchase plans;
(xii) make, change or revoke, or permit to be made, changed or revoked, any material election or method of accounting with respect to Taxes, or enter into, or permit to be entered into, any closing or other agreement or settlement with respect to Taxes affecting or relating to Parent;
(xiii) make any material changes in financial or tax accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP or applicable Law;
(xiv) amend its organizational documents;
(xv) (A) adopt a plan or agreement of complete or partial liquidation or dissolution or approve resolutions providing for the liquidation, dissolution, merger, consolidation or other reorganization of Parent or (B) merge or consolidate with or into any other legal entity or dissolve or liquidate or otherwise reorganize except as contemplated in this Agreement;
(xvi) engage in any transactions with, or enter into any other transaction contracts or agreement with, any Affiliates of Parent;
(xvii) make any loans, advances or capital contributions to, or make any investments in, any Person;
(xviii) revalue any portion of its assets or properties or write down or write-off as uncollectible any notes or accounts receivable, except write-offs in the ordinary course of businessbusiness consistent with past practice charged to applicable reserves; or
(Dxix) enter into any Contractauthorize, agreement, commitment agree or arrangement with respect commit to take any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewithactions.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Samples: Merger Agreement (BTHC VII Inc)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement, the Spin-Out Agreement or the Conversion:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange ActCorp.;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange ActCorp.;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and Corp.and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Samples: Merger Agreement (Innovative Consumer Products, Inc.)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practicecourse; provided, however, that Parent shall take the steps necessary to have discontinued its existing business without liability to Parent or Acquisition Corp. as of the Closing Date;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-lawslaws other than to authorize the Parent to issue one or more series or classes of preferred stock in order to create therefrom the Parent Series A Preferred Stock which shall be issued at the Closing in the Private Placement; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of businessbusiness (except for dispositions in connection with Section 5.2(i) hereof); (C) incur additional Indebtedness or any other Liabilities liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contractcontract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreementforegoing, or (E) except as contemplated by this Agreement, enter into any Contractcontract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact neither the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined belowbelow for purposes of this paragraph). Parent will promptly advise the Company orally and in writing of any such inquiries or Acquisition Proposal proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Samples: Merger Agreement (Odyne Corp)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate articles of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and.
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required Parent SEC Reports Documents under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(ia) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(iib) neither Parent nor Acquisition Corp. shall (Ai) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (Bii) amend its certificate articles of incorporation or by-laws; or (Ciii) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iiic) neither Parent nor Acquisition Corp. shall (Ai) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (Bii) acquire or dispose of any assets other than in the ordinary course of businessassets; (Ciii) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of businessLiabilities; (Div) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, ; or (Ev) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.;
(ivd) Each of Parent and Acquisition Corp. shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange ActCorp.;
(ve) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, makedirectly or indirectly, solicit, initiate or encourage any inquiries with respect inquiries, offers or proposals from, discuss, assist or negotiate with, provide any information to, or engage in consider the merits of any negotiations concerninginquiries, offers or proposals from, any Acquisition Proposal Person (as defined below). other than the Company) relating to (i) the liquidation, dissolution, sale of assets of Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal Corp.; (or requests for informationii) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other recapitalization involving Parent or Acquisition Corp.; (iii) a sale of capital stock of Parent or Acquisition Corp., or (iv) any similar transaction or business combination involving the Parent or Acquisition Corp. Parent and Acquisition Corp. agree to immediately notify the Company of the substance of any transaction inquiry, proposal or for offer concerning Parent or Acquisition Corp. that either Parent or Acquisition Corp. may receive.
(f) neither Parent nor Acquisition Corp. will enter into any new employment agreements with any of its officers or employees or grant any increases in the acquisition compensation or benefits of a substantial equity interest in either of them or any material assets of either of them other than their officers and employees;
(g) except as otherwise expressly contemplated by this Agreement. , neither Parent will immediately cease nor Acquisition Corp. shall undertake or permit any action that would (i) require any additional disclosure under Section 5.10 hereof; (ii) result in a breach of the representations and cause warranties contained in Article V; or (iii) likely result in a Material Adverse Effect on Parent or Acquisition Corp;
(h) Parent shall have merged with and into a Delaware corporation, in form and substance reasonably satisfactory to the Company, and in accordance with applicable laws of the State of Nevada and the State of Delaware, for the sole purpose of changing the domicile of Parent from the State of Nevada to the State of Delaware, and Parent shall have taken any and all action reasonably necessary in connection therewith such that Parent’s Common Stock shall continue to be terminated any existing activitiesquoted on the OTC Bulletin Board;
(i) Parent shall have filed a registration statement under the Exchange Act such that Parent’s Common Stock will be registered under the Exchange Act; and
(j) Subject to Section 10.4 hereof, discussions Parent shall have paid, or negotiations with any Person conducted heretofore with respect caused to any be paid, to the Persons entitled thereto, all of the foregoing; andSelling Expenses.
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practice;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) amend its certificate articles of incorporation or by-laws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iii) neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.;
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Parent represents and warrants to the Company that Acquisition Corp. has never operated any business. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement or disclosed in any Schedule to this Agreement:
(ia) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practiceand Acquisition Corp. shall conduct no business;
(iib) neither Parent nor Acquisition Corp. shall (Ai) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (Bii) amend its articles or certificate of incorporation or by-laws; or (Ciii) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iiic) neither Parent nor Acquisition Corp. shall (Ai) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (Bii) acquire or dispose of any assets other than in the ordinary course of businessbusiness (except for dispositions in connection with Section 5.2(a) hereof); (Ciii) incur additional Indebtedness or any other Liabilities liabilities or enter into any other transaction except in the ordinary course of business; (Div) enter into any Contractcontract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreementforegoing, or (Ev) except as contemplated by this Agreement, enter into any Contractcontract, agreement, commitment or arrangement to dissolve, merge; , consolidate or enter into any other material business contract or enter into any negotiations in connection therewith.
(iv) Parent shall use its best efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(vd) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined belowbelow for purposes of this paragraph). Parent will promptly advise the Company orally and in writing of any such inquiries or Acquisition Proposal proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person person conducted heretofore with respect to any of the foregoing; and
(e) neither the Parent nor Acquisition Corp. will enter into any new or amended employment agreements with any of their respective officers or employees or any other Person or grant any increases in the compensation or benefits of their respective officers or employees.
Appears in 1 contract
Samples: Merger Agreement (Powerverde, Inc.)
Conduct of Business by Parent and Acquisition Corp. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing or as otherwise contemplated expressly permitted by this Agreement:
(i) the business of Parent and Acquisition Corp. shall be conducted only in the ordinary course consistent with past practicecourse;
(ii) neither Parent nor Acquisition Corp. shall (A) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (B) except for the designation of the Parent Series A Preferred Stock, amend its certificate of incorporation or by-lawsBylaws; or (C) split, combine or reclassify its capital stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to such stock; and;
(iii) except as set forth on Schedule 6.2(iii), neither Parent nor Acquisition Corp. shall (A) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire shares of, its capital stock; (B) acquire or dispose of any assets other than in the ordinary course of business; (C) incur additional Indebtedness or any other Liabilities or enter into any other transaction except in the ordinary course of business; (D) enter into any Contract, agreement, commitment or arrangement with respect to any of the foregoing except this Agreement, or (E) except as contemplated by this Agreement, enter into any Contract, agreement, commitment or arrangement to dissolve, merge; , consolidate or enter into any other material business contract combination or enter into any negotiations in connection therewith.;
(iv) Parent shall use its best commercially reasonable efforts to preserve intact the business of Parent and Acquisition Corp., to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with Parent and Acquisition Corp. and to file all required SEC Reports under the Exchange Act;
(v) neither Parent nor Acquisition Corp. will, nor will they authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by them to, make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below). Parent will promptly advise the Company in writing of any such inquiries or Acquisition Proposal (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any proposal for a merger or other business combination involving the Parent or Acquisition Corp. or for the acquisition of a substantial equity interest in either of them or any material assets of either of them other than as contemplated by this Agreement. Parent will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing; and
Appears in 1 contract
