Forbearances. During the period from the date of this Agreement to the Effective Time, Union shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of First Charter (and Union shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the date hereof): (a) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance other than in the ordinary course of business consistent with past practice; (b) adjust, split, combine or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or issue any additional shares of capital stock, or any securities or obligations convertible into or exchangeable for any shares of its capital stock, except pursuant to the exercise of Union Options outstanding as of the date hereof and pursuant to the Stock Option Agreement; (c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity, or cancel, release or assign any indebtedness to any such person or any claims held by any such person; (d) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity; (e) enter into or terminate any contract or agreement involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice, or make any change in, or extension of, any of its leases or contracts involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice; (f) increase or modify in any manner the compensation or fringe benefits of any of its Employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee or accelerate the vesting of any stock options or other stock-based compensation; provided the foregoing shall not prevent the continued accrual and payment in the ordinary course of benefits under the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such plan; and provided further, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (ii) consistent with the budgets for Union which have been approved by First Charter; (g) take any action, or refrain from taking any action, that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code or from qualifying for pooling-of-interests accounting treatment; (h) settle any claim, action or proceeding involving the payment of money damages in excess of an amount which, together with all other claims, actions or proceedings previously settled, exceeds $20,000; (i) amend its Articles of Incorporation or its bylaws; (j) fail to maintain its Regulatory Agreements, material licenses and permits or to file in a timely fashion all federal, state, local and foreign tax returns; (k) make any capital expenditures of more than $10,000 individually or $25,000 in the aggregate; (l) fail to maintain each Union Benefit Plan or timely make all contributions or accruals required thereunder in accordance with GAAP applied on a consistent basis; or (m) agree to, or make any commitment to, take any of the actions prohibited by this SECTION 7.02.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, Union shall notexcept as set forth in the Best Disclosure Schedule or the Hiway Disclosure Schedule, as the case may be, and except as expressly contemplated or permitted by this Agreement, neither Best nor Hiway shall, and Hiway shall not permit any of its Subsidiaries Subsidiary to, without the prior written consent of First Charter (and Union shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the date hereof):other:
(a) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance other than in the ordinary course of business consistent with past practiceadvance;
(b) (i) adjust, split, combine or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; (ii) make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or ; (iii) grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stockstock (and no such rights or options shall be granted, except as otherwise agreed in writing by Best and Hiway); or (iv) issue any additional shares of capital stock, or any securities or obligations convertible into or exchangeable for any shares of its capital stock, stock except pursuant to the exercise of Union Options stock options or warrants or the conversion of convertible securities outstanding as of the date hereof and pursuant to the Stock Option Agreementof this Agreement or approved hereunder;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entityentity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement;
(d) except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entityentity other than a Subsidiary;
(e) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days noticeagreement, or make any change in, or extension of, in any of its material leases or contracts, other than renewals of contracts involving annual payments in excess and leases without material adverse changes of $1,000 and which cannot be terminated without penalty upon 30 days noticeterms;
(f) increase or modify in any manner the compensation or fringe benefits of any of its Employees employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employeesemployees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee employee other than in the ordinary course of business consistent with past practice or accelerate the vesting of any stock options or other stock-based compensation; provided the foregoing shall not prevent the continued accrual and payment ;
(g) settle any claim, action or proceeding involving money damages, except in the ordinary course of benefits under the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such plan; and provided further, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (ii) business consistent with the budgets for Union which have been approved by First Charterpast practice;
(gh) take any action, or refrain from taking any action, action that would prevent or impede the Merger from qualifying (i) for "pooling of interests" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code or from qualifying for pooling-of-interests accounting treatment;
(h) settle any claim, action or proceeding involving the payment of money damages in excess of an amount which, together with all other claims, actions or proceedings previously settled, exceeds $20,000Code;
(i) amend its Articles of Incorporation or its bylawsBylaws, except as contemplated by this Agreement;
(j) fail take any action that is intended or may reasonably be expected to maintain result in any of its Regulatory Agreementsrepresentations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, material licenses and permits or in any of the conditions to file the Merger set forth in Article VII of this Agreement not being satisfied or in a timely fashion all federalviolation of any provision of this Agreement, stateexcept, local and foreign tax returns;
(k) make any capital expenditures of more than $10,000 individually in every case, as may be required by applicable law or $25,000 in the aggregate;
(l) fail to maintain each Union Benefit Plan or timely make all contributions or accruals required thereunder in accordance with GAAP applied on a consistent basisexisting contractual obligations; or
(mk) agree to, or make any commitment to, take any of the actions prohibited by this SECTION 7.02Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to From and after the Effective TimeDate, Union Optionor shall not, and shall ensure that the Company will not permit do any of its Subsidiaries to, the following without the prior written consent of First Charter (GRO, in its sole and Union shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after absolute discretion, except as otherwise expressly permitted under the date hereof):
Operating Agreement : (a) declare, set aside, make, or pay any distribution other than in a direct obligation of the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred Company related to refinance short-term indebtedness, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance other than in the ordinary course of business consistent with past practice;
Company Business ; (b) adjustissue, split, combine or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; make, declare or pay any dividend or make any other distribution onsell, or directly deliver or indirectly redeementer into any agreement to issue, purchase sell, or otherwise acquiredeliver any Shares, economic, or similar interest in the Company, or any shares options, warrants, or other rights, agreements, commitments, arrangements or understandings of its capital stock any kind, contingent or otherwise, to purchase, sell or deliver any such interests, or any securities or obligations convertible into or exchangeable for any shares of its capital stocksuch interests, or grant any stock appreciation rights or grant any individualotherwise change, corporation or other entity any right to acquire any shares of its capital stock; or issue any additional shares of capital stockcombine, or any securities or obligations convertible into or exchangeable for any shares of reclassify its capital stock, except pursuant to the exercise of Union Options outstanding as of the date hereof and pursuant to the Stock Option Agreement;
authorized capitalization ; (c) sell, transfer, incur any indebtedness or issue or sell any debt securities or prepay any debt; (d) mortgage, encumber pledge, or otherwise subject to any material lien or lease, any or all of the Property; (e) (f) forgive or cancel any debts or claims, or waive any rights, except for fair value ; enter into any type of business other than the Company Business or acquire any asset other than the Property, or create or organize any subsidiary or enter into or participate in any joint venture or partnership ; except as otherwise expressly contemplated by this Agreement, enter into any agreement or transactions with any affiliates or make any amendment or modification to any such agreement; make or change any election in respect of taxes or settle any claim related to taxes; sell or otherwise dispose of the Property; or enter into any contract, commitment, or arrangement to do any of its properties or assets to any individual, corporation or other entity, or cancel, release or assign any indebtedness to any such person or any claims held by any such person;
the foregoing. (dg) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity;
(eh) enter into or terminate any contract or agreement involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice, or make any change in, or extension of, any of its leases or contracts involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice;
(f) increase or modify in any manner the compensation or fringe benefits of any of its Employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee or accelerate the vesting of any stock options or other stock-based compensation; provided the foregoing shall not prevent the continued accrual and payment in the ordinary course of benefits under the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such plan; and provided further, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (ii) consistent with the budgets for Union which have been approved by First Charter;
(g) take any action, or refrain from taking any action, that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code or from qualifying for pooling-of-interests accounting treatment;
(h) settle any claim, action or proceeding involving the payment of money damages in excess of an amount which, together with all other claims, actions or proceedings previously settled, exceeds $20,000;
(i) amend its Articles of Incorporation or its bylaws;
(j) fail 3. Assignment of Option a) Right to maintain its Regulatory AgreementsAssign Option to Purchase Shares - The Optionee shall have the right to assign all or part of their rights, material licenses title, and permits or interest in and to file the option to purchase shares of Optionor any time. b) Acknowledgment of Future Assignment - The Optionor, acknowledges and agrees that the Optionee intends to assign the Option, at a future date, to a new entity that will undertake a Regulation A financing (the “Reg A Entity”). The Optionor further consents to such assignment, provided that it complies with the conditions set forth in a timely fashion all federal, state, local this clause and foreign tax returns;
(k) make any capital expenditures of more than $10,000 individually or $25,000 in the aggregate;
(l) fail to maintain each Union Benefit Plan or timely make all contributions or accruals required thereunder in accordance with GAAP applied on a consistent basis; or
(m) agree to, or make any commitment to, take any of the actions prohibited by this SECTION 7.02Option Agreement.
Appears in 1 contract
Forbearances. During From the period from Execution Date until the date of Closing, Seller and the Sole Member covenant and agree to ensure that other than as contemplated in this Agreement or as otherwise disclosed in writing to the Effective TimeBuyer, Union shall not, and shall Seller will not permit do any of its Subsidiaries to, the following without the prior written consent of First Charter (and Union Buyer, which consent shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the date hereof):not be unreasonably withheld:
(a) issue, sell or deliver or enter into any agreement to issue, sell or deliver any ownership interests or any options, warrants, or other than in the ordinary course of business consistent with past practicerights, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtednessagreements, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall includecommitments, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse arrangements or otherwise as an accommodation become responsible for the obligations understandings of any other individualkind, corporation contingent or other entityotherwise, to purchase, sell or make deliver any loan or advance other than in the ordinary course of business consistent with past practice;
(b) adjustsuch ownership interests, split, combine or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stocksuch ownership interests, or grant effect any stock appreciation rights split, or grant otherwise change, combine or reclassify its authorized capitalization;
(b) incur any individual, corporation or other entity any right to acquire any shares of its capital stock; indebtedness or issue or sell any additional shares of capital stock, or any debt securities or obligations convertible into or exchangeable for prepay any shares of its capital stock, except pursuant to the exercise of Union Options outstanding as of the date hereof and pursuant to the Stock Option Agreementdebt;
(c) sell, transfer, mortgage, encumber pledge or otherwise dispose of subject to any material lien or lease, any of its properties or assets assets, tangible or intangible or permit or suffer any such property or asset to be subjected to any individual, corporation material lien or other entitylease, or cancel, release license or assign dispose of any indebtedness to any such person or any claims held by any such personmaterial assets;
(d) make modify or extend the current term of any material investment either by purchase of stock or securities, contributions to capital, property transfersagreement, or purchase of waive any property or assets of any other individual, corporation or other entitymaterial rights thereunder;
(e) enter into any type of business not conducted by it as of the Execution Date or terminate create or organize any contract subsidiary or agreement involving annual payments enter into or participate in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice, any joint venture or make any change in, or extension of, any of its leases or contracts involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days noticepartnership;
(f) increase except as otherwise expressly contemplated by this Agreement, enter into any agreement or modify in transaction or make any manner the compensation amendment or fringe benefits of any of its Employees or pay any pension or retirement allowance not required by any existing plan or agreement modification to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee or accelerate the vesting of any stock options or other stock-based compensationagreement; provided the foregoing shall not prevent the continued accrual and payment in the ordinary course of benefits under the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such plan; and provided further, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (ii) consistent with the budgets for Union which have been approved by First Charter;or
(g) take enter into any actioncontract, commitment or refrain from taking any action, that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code or from qualifying for pooling-of-interests accounting treatment;
(h) settle any claim, action or proceeding involving the payment of money damages in excess of an amount which, together with all other claims, actions or proceedings previously settled, exceeds $20,000;
(i) amend its Articles of Incorporation or its bylaws;
(j) fail arrangement to maintain its Regulatory Agreements, material licenses and permits or to file in a timely fashion all federal, state, local and foreign tax returns;
(k) make any capital expenditures of more than $10,000 individually or $25,000 in the aggregate;
(l) fail to maintain each Union Benefit Plan or timely make all contributions or accruals required thereunder in accordance with GAAP applied on a consistent basis; or
(m) agree to, or make any commitment to, take do any of the actions prohibited by this SECTION 7.02foregoing.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to until the earlier of the termination of this Agreement or the Effective Time, Union except as expressly contemplated or permitted by this Agreement or as otherwise indicated in this Section 4.2, Raindance shall not, and shall not permit any of its Subsidiaries to, without the prior written consent Consent of First Charter West (and Union which Consent shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the date hereofnot be unreasonably withheld or delayed):
(a) other than in the ordinary course of business consistent amend its Organizational Documents or any indemnity agreements with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse its directors or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance other than in the ordinary course of business consistent with past practiceofficers;
(b) (i) adjust, split, combine combine, subdivide or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; , (ii) make, declare declare, set aside or pay any dividend dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, or (iii) grant any stock appreciation rights or grant any individualRights, corporation or other entity any right to acquire any shares of its capital stock; or issue any additional shares of capital stock(iv) except for Permitted Issuances, issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or any securities authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or obligations convertible into or exchangeable for encumbrance of, any shares of its capital stock, except pursuant to or (v) make any change in any instrument or Contract governing the exercise terms of Union Options outstanding as any of the date hereof and pursuant to the Stock Option Agreementits securities;
(c) sellother than short-term investments in the ordinary course of business in connection with its treasury or cash management function or pursuant to Contracts in force at the date of or permitted by this Agreement, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity, or cancel, release or assign any indebtedness to any such person or any claims held by any such person;
(d) make any material investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of assets) in any other individualPerson;
(d) enter into any new line of business, corporation or other entitymaterially change its operating policies that are material to it, except as required by applicable Law;
(e) enter into sell, transfer, mortgage, encumber or terminate otherwise dispose of any contract material part of its business or agreement involving annual payments in excess any of $1,000 and which cannot be terminated without penalty upon 30 days noticeits material properties or assets to any Person, or make otherwise create or incur any change inmaterial Lien on its assets, or extension cancel, release or assign any indebtedness of any Person or any claims against any Person or transfer, agree to transfer or grant of, or agree to grant a license to, any of its leases material Intellectual Property, except (i) the sale, transfer or contracts involving annual payments other disposition of obsolete, worn-out or unneeded equipment in excess the ordinary course of $1,000 business consistent with past practice or the grant of non-exclusive out-licenses in connection with ordinary revenue transactions, (ii) as security for any indebtedness permitted by Section 4.2(f), or (ii) pursuant to Contracts in force as of the date of this Agreement and which cannot be terminated without penalty upon 30 days noticedisclosed in Section 4.2(e) of its Disclosure Letter;
(f) incur any material amount of indebtedness for borrowed money other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(f), “short-term” shall mean maturities of six months or less) and other than borrowings pursuant to existing credit facilities or pursuant to any modifications, renewals or replacements of such credit facilities so long as the maximum aggregate permitted borrowings for such modifications, renewals or replacements are not increased and do not increase or modify create any prepayment penalties or premiums, and other than with respect to normal course expense reimbursement commitments to officers, directors and employees; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person; make any loan, capital contribution or advance to any Person (other than travel, business expense and similar advances to employees in the ordinary course of business consistent with past practice); or grant credit to any customer, distributor or supplier of it or any of its Subsidiaries on terms or in amounts materially more favorable than had been extended to any such Person in the past;
(g) amend (except in a manner favorable to Raindance), terminate or waive any material provision of any Contract that is filed as an exhibit to its SEC Reports or that is listed in Section 3.3(l) of its Disclosure Letter or that is otherwise material to its business, other than (x) in connection with normal renewals of Contracts without materially adverse changes of terms, (y) in connection with the scheduled expiration of a Contract’s term or (z) with respect to Contracts with customers, any amendments or waivers of payment provisions in the ordinary course of business consistent with past practice in an amount not to exceed $5,000 in any one case or $25,000 in the aggregate during any 30 day period;
(h) other than as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as disclosed in Section 4.2(h) of its Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of any of its Employees officers, employees or directors, (ii) pay any pension or retirement allowance not required by any existing plan Benefit Plan or agreement Contract to any such Employeesofficers, employees or directors, (iii) become a party to, amend or commit itself to any pension, retirement, profit-sharing Benefit Plan or welfare benefit plan Contract (or agreement any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any Employee officer, employee or accelerate the vesting of any stock options or director, other stockthan: (A) standard offer letters in connection with hiring at-based compensationwill employees not otherwise prohibited by Section 4.2(i); provided the foregoing shall not prevent the continued accrual and payment (B) Contracts in the ordinary course of benefits business consistent with past practice under existing Benefit Plans to the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such plan; and provided furtherextent not otherwise prohibited by this Section 4.2, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (iiiv) consistent with accelerate the budgets for Union which have been approved by First Charter;
(g) take any actionvesting of, or refrain from taking the lapsing of restrictions with respect to, Rights pursuant to any action, that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code or from qualifying for pooling-of-interests accounting treatment;
(h) settle any claim, action or proceeding involving the payment of money damages in excess of an amount which, together with all other claims, actions or proceedings previously settled, exceeds $20,000Raindance Stock Plan;
(i) amend its Articles hire any employee (i) other than on an at-will basis or (ii) with annual compensation (including base salary and bonus opportunity) of Incorporation $200,000 or its bylawsmore;
(j) fail to maintain settle or compromise any material Litigation, other than (x) in connection with enforcing its Regulatory Agreementsrights under this Agreement, material licenses and permits or to file (y) for the routine collection of bills in a timely fashion all federal, state, local and foreign tax returnsthe ordinary course of business consistent with past practice;
(k) make revalue any capital expenditures of more its or any of its Subsidiaries’ assets or change any method of accounting or accounting practice used by it or any of its Subsidiaries (including changes with respect to extending trade receivables or making any changes to its or its Subsidiaries’ receivables write-off policies or changing its or its Subsidiaries’ payables cycle policies), other than $10,000 individually changes required by GAAP and other than changes which would not have a material impact on Raindance or $25,000 in the aggregateits Subsidiaries;
(l) fail file or amend any Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability; or make, change or revoke any material Tax election or change any method of Tax accounting, except as required by applicable Law;
(m) merge or consolidate it or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned Subsidiaries that are not obligors or guarantors of third party indebtedness;
(n) acquire assets or spend or commit to maintain each Union Benefit Plan or timely make all contributions or accruals spend amounts on capital expenditures in exceess of the amounts set forth in Section 4.2(n) of the Disclosure Letter;
(p) enter into any Contract that would be required thereunder to be listed in accordance with GAAP applied on a consistent basisSection 3.3(l)(i) of the Disclosure Letter if entered into prior to the date hereof; or
(mq) agree to, or make any commitment to, to take any of the actions prohibited by this SECTION 7.02Section 4.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, Union except as expressly contemplated or permitted by this Agreement, email shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of First Charter (and Union shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the date hereof):Parent:
(a) other than in the ordinary course of business consistent with past practicebusiness, incur any indebtedness for borrowed money (other than short-term or any indebtedness incurred to refinance short-term indebtedness, it being understood and agreed that incurrence constitutes the deferred purchase price of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements)any property or assets, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance other than in the ordinary course of business consistent with past practiceadvance;
(b) adjust, split, combine or reclassify any capital stock or otherwise make any change with respect to its authorized capital stock; ;
(c) make, declare or pay any dividend (whether in cash or property), or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, or ;
(d) grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or ;
(e) issue any additional shares of capital stock, or any securities or obligations convertible into or exchangeable for any shares of its capital stock, except pursuant to the exercise of Union Options outstanding as of the date hereof and pursuant to the Stock Option Agreement;
(cf) sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets (including, without limitation, cash) to any individual, corporation or other entity, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except in the ordinary course of business or pursuant to contracts or agreements in force at the date of this Agreement;
(dg) except pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment in, either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of assets, any other individual, corporation or other entity;
(eh) enter into except for transactions in the ordinary course of business, terminate, or terminate waive any contract or agreement involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days noticematerial provision of, any contract, or make any change in, in any instrument or extension of, agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases or contracts involving annual payments in excess without material adverse changes of $1,000 and which cannot be terminated without penalty upon 30 days noticeterms;
(fi) increase or modify in any manner the compensation or fringe benefits of any of its Employees employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee employee other than in the ordinary course of business, or accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options or other stock-based compensation; provided the foregoing shall not prevent the continued accrual and payment in the ordinary course of benefits under the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such plan; and provided further, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (ii) consistent with the budgets for Union which have been approved by First Charter;
(gj) take solicit or encourage from any actionthird party or enter into any negotiations, discussions or agreement in respect of, or refrain authorize any individual, corporation or other entity to solicit or encourage from taking any actionthird party or enter into any negotiations, that would prevent discussions or impede agreement in respect of, or provide or cause to be provided any confidential information in connection with, any inquiries or proposals relating to the Merger from qualifying conveyance, sale, lease, transfer or other disposition of all or a substantial portion of its business, property or assets, or the acquisition of its capital stock or securities convertible into capital stock, or the merger or consolidation, whether in one transaction or a series of transactions, of it with any corporation or other entity, other than as a reorganization within provided by this Agreement (and each party shall promptly notify the meaning other of Section 368 all of the Code or from qualifying for pooling-of-interests accounting treatmentrelevant details relating to all inquiries and proposals which it may receive relating to any of these matters);
(hk) settle any material claim, action or proceeding involving the payment of money damages in excess of an amount whichdamages, together with all other claims, actions or proceedings previously settled, exceeds $20,000;
(i) amend its Articles of Incorporation or its bylaws;
(j) fail to maintain its Regulatory Agreements, material licenses and permits or to file in a timely fashion all federal, state, local and foreign tax returns;
(k) make any capital expenditures of more than $10,000 individually or $25,000 except in the aggregateordinary course of business;
(l) fail to maintain each Union Benefit Plan make any material capital expenditures, make any material changes in its current method of conducting business, or timely make all contributions liquidate, dissolve or accruals required thereunder in accordance with GAAP applied on a consistent basis; orsuffer any liquidation or dissolution;
(m) agree tomake any material payment of principal of any debt, with a maturity of more than one year, for borrowed money or for the deferred purchase price of property or services except at the stated maturity of the debt or as required by mandatory prepayment provisions relating thereto (subject to any subordination provisions applicable thereto);
(n) enter into any material agreement or become liable under any material agreement for the lease, hire or use of any real or personal property, or enter into any material sale/leaseback arrangement with respect to any real or personal property which now owned or hereafter acquired;
(o) incur or make any commitment tooptional prepayment of, take or purchase, redeem or otherwise acquire, or amend any of provision pertaining to the actions prohibited by this SECTION 7.02.subordination, or the terms
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