CONDUCT OF BUSINESSES PENDING THE MERGER. Section 5.01 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement:
(a) the business of the Company shall be conducted only in the ordinary course;
(b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws except to effectuate the transactions contemplated in the Disclosures or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock;
(c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock, except to issue shares of Company Common Stock in connection with any matter relating to the Disclosures; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing or (v) 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 combination;
(d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it;
(e) the Company will not, nor will it authorize any director or authorize or permit any officer or employee or any attorney, accountant or other representative retained by it to make, solicit, encourage any inquiries with respect to, or engage in any negotiations concerning, any Acquisition Proposal (as defined below for purposes of this paragraph). The Company will promptly advise Parent orally and in writing of any such inquiries or proposals (or requests for information) and the substance thereof. As used in this paragraph, “Acquisition Proposal” shall mean any propo...
CONDUCT OF BUSINESSES PENDING THE MERGER. SECTION 5.01 Conduct of Business by the Company and the Subsidiaries Pending the Merger. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company agrees, and shall cause each Subsidiary (except to the extent that Parent shall otherwise consent in writing), to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to pay or perform other obligations when due and, to the extent consistent with such business, to use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. The Company shall promptly notify Parent of any event or occurrence not in the ordinary course of business of the Company or the Subsidiary. By way of amplification and not limitation, except as specifically contemplated by this Agreement or as specifically set forth in Section 5.01 of the Company Disclosure Schedule, neither the Company nor the Subsidiary shall, between the date of this Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent (it is hereby agreed by Parent that following an email request for consent by the Company, consent via email from Parent’s General Counsel or Chief Financial Officer to the Company shall be deemed written consent for purposes of this Section 5.01):
CONDUCT OF BUSINESSES PENDING THE MERGER. Conduct of Business by the Company Pending the Merger.....30 SECTION 5.02. Conduct of Business by Parent Pending the Merger..........33 SECTION 5.03. Adverse Changes in Condition..............................35 ARTICLE VI
CONDUCT OF BUSINESSES PENDING THE MERGER. 5.1 Conduct of Business by the Company Pending the Merger. Prior to the Effective Time, unless Parent or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement or disclosed in any Schedule to this Agreement:
(a) the business of the Company shall be conducted only in the ordinary course;
(b) the Company shall not (i) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of its capital stock; (ii) amend its Certificate of Incorporation or By-laws; or (iii) split, combine or reclassify the outstanding Company Common Stock or declare, set aside or pay any dividend payable in cash, stock or property or make any distribution with respect to any such stock;
(c) the Company shall not (i) issue or agree to issue any additional shares of, or options, warrants or rights of any kind to acquire any shares of, Company Common Stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of any other substantial assets other than in the ordinary course of business; (iii) incur additional Indebtedness or any other liabilities or enter into any other transaction other than in the ordinary course of business; (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; or (v) 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 combination;
(d) the Company shall use its best efforts to preserve intact the business organization of the Company, to keep available the service of its present officers and key employees, and to preserve the good will of those having business relationships with it; and
(e) the Company will not enter into any new employment agreements with any of its officers or employees or grant any increases in the compensation or benefits of its officers and employees other than increases in the ordinary course of business and consistent with past practice or amend any employee benefit plan or arrangement.
CONDUCT OF BUSINESSES PENDING THE MERGER. From and after the date of this Agreement and prior to the effective time of the Merger, neither of the Constituent Corporations will, without the prior written consent of the other:
1. Amend its Certificate of Incorporation or By-Laws except, in the case as may be necessary to enable them to carry out the provisions of this Agreement;
2. Engage in any material activity or transaction or incur any material obligation (by contract or otherwise) except in the ordinary course of business;
3. Issue rights or options to purchase or subscribe to any shares of its capital stock or subdivide or otherwise change any such shares;
4. Issue or sell any shares of its capital stock or securities convertible into shares of its capital stock, other than the contingent issuance of seventy-five thousand (75,000) $.01 par value Common shares of Cytation to Xxxxxxx Xxxx & Company, Limited Liability Company in connection with consulting and advisory services rendered to Cytation; or
5. Declare or pay any dividends on or make any distributions in respect of any shares of its capital stock.
6. From and after the date of this Agreement and prior to the effective time of the Merger, Cytation will use its best efforts to preserve its business organizations; to keep available to Xxxxxxxx.xxx the services of Cytation's present officers and employees; and to preserve for Xxxxxxxx.xxx the goodwill of Cytation's suppliers, customers and others having business relations with any of them. During the same period, Cytation will not put into effect any material increase in the compensation or other benefits applicable to officers or other key personnel.
CONDUCT OF BUSINESSES PENDING THE MERGER. SECTION 5.01. Conduct of Business by the Company Pending the Merger.
(a) The Company agrees that, between the date of the Original Agreement and the Effective Time, except as set forth in Section 5.01 of the Company Disclosure Schedule or as specifically contemplated by any other provision of this Agreement, unless Parent shall otherwise consent in writing:
(i) the business of the Company shall be conducted only in, and the Company shall not take any action except in, the ordinary course of business and in a manner consistent with past practice; and
(ii) the Company shall use commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of the current officers, employees and consultants of the Company and to preserve the current relationships of the Company with customers, suppliers, licensors, licensees and other persons with which the Company has significant business relations.
(b) By way of amplification of Section 5.01(a) and not limitation, except as contemplated by this Agreement or as set forth in Section 5.01 of the Company Disclosure Schedule, the Company shall not, between the date of the Original Agreement and the Effective Time, directly or indirectly, do, or propose to do, any of the following without the prior written consent of Parent:
(i) amend or change its Articles of Incorporation or Bylaws, except in connection with the Company Charter Amendment (as defined in Section 6.01);
(ii) transfer, issue, sell, pledge, lease, license, dispose, grant, encumber, or authorize for transfer, issuance, sale, pledge, lease, license, disposition, grant or encumbrance (i) any shares of its capital stock of any class or series, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest) of the Company (except for (A) the issuance of Common Stock of the Company pursuant to the exercise or conversion of a Company Option or Company Preferred Stock outstanding as of the date hereof and (B) the transfer by gift or donation of capital stock of the Company by a Company Shareholder to a third party donee) or (ii) any assets of the Company, except, in the case of this subsection (ii), in the ordinary course of business and in a manner consistent with past practice;
(iii) authorize, declare, set aside, make or pay any dividend payment or other distribution, pa...
CONDUCT OF BUSINESSES PENDING THE MERGER. SECTION 4.1 Conduct of Business of the Company . . . . .
CONDUCT OF BUSINESSES PENDING THE MERGER. From and after the date of this Agreement and prior to the effective time of the Merger, neither of the Constituent Corporations will, without the prior written consent of the other:
1. Amend its Certificate of Incorporation or By-Laws except, in the case as may be necessary to enable them to carry out the provisions of this Agreement;
2. Engage in any material activity or transaction or incur any material obligation (by contract or otherwise) except in the ordinary course of business;
3. Issue rights or options to purchase or subscribe to any shares of its capital stock or subdivide or otherwise change any such shares;
4. Issue or sell any shares of its capital stock or securities convertible into shares of its capital stock; or
5. Declare or pay any dividends on or make any distributions in respect of any shares of its capital stock.
6. From and after the date of this Agreement and prior to the effective time of the Merger, AgTech will use its best efforts to preserve its business organizations; to keep available to Oak Brook the services of AgTech's present officers and employees; and to preserve for Oak Brook the goodwill of AgTech's suppliers, customers and others having business relations with any of them. During the same period, AgTech will not put into effect any material increase in the compensation or other benefits applicable to officers or other key personnel.
7. Oak Brook shall not engage in any business and will not enter into any contracts or commitment, borrow any money or retain any employees.
CONDUCT OF BUSINESSES PENDING THE MERGER. Conduct of Business by NBPC Pending the Merger. Prior to the Effective Time, unless Nexus or Acquisition Corp. shall otherwise agree in writing or as otherwise contemplated by this Agreement:
CONDUCT OF BUSINESSES PENDING THE MERGER. 5.01. Conduct of Business by the Company Pending the Merger..36 5.02. Conduct of Business by Parent Pending the Merger.......39 5.03.
