Common use of Restricted Activities and Transactions Clause in Contracts

Restricted Activities and Transactions. Except as specifically consented to in writing by ERD, prior to the Effective Time of the Merger, ENSA shall not: (a) amend its certificate of incorporation or by-laws; (b) except pursuant to conversion rights or options in existence on the date hereof, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell or deliver, or agree to issue, sell or deliver, any shares of any class of capital stock of ENSA, any securities convertible into any such shares or convertible into securities in turn so convertible or any options, warrants or other rights calling for the issuance, sale or delivery of any such shares or convertible securities; (c) encumber any of its properties or assets, except for Permitted Encumbrances; (d) except in the ordinary course of business (and consistent with prior practice), (i) borrow, or agree to borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assets, (iv) make or agree to make any capital expenditure in excess of $25,000 in any individual case or $100,000 in the aggregate, (v) make or permit any amendment or termination of any Contract or (iv) terminate service to any customer; (e) grant any increase in compensation to any employee (except in the ordinary course of business and consistent with prior practice), officer or director of ENSA or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior practice), officer, director or agent of ENSA; (f) enter into or make any change in any employee benefit program, except as required by law; (g) acquire control or ownership of any Person, or acquire control or ownership of the customer list or any other substantial portion of the assets of any Person, or merge, consolidate or otherwise combine with any other Person, or enter into any agreement providing for any of the foregoing; (h) except in the ordinary course of business, change in any material respect any arrangement with any agent, distributor or material customer or supplier or change the accounting practices and principles utilized in the preparation of the Financial Statements or the method of recognition of revenue; (i) except in the ordinary course of business, enter into or agree to enter into any transaction except for the settlement of ENSA's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure Letter; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA Common Stock or Preferred Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports or Tax Returns required to be filed with federal, state, local, foreign and other authorities; or (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assets, or (ii) to withhold, collect and pay to the proper governmental authorities, or hold in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action in the ordinary course of business.

Restricted Activities and Transactions. Except as specifically consented to in writing by ERDThe Shareholders represent, warrant, and covenant that HPI will not enter into any transactions, prior to the Effective Time of the MergerClosing Date, ENSA shall not: (a) amend its certificate of incorporation or by-laws; (b) except pursuant to conversion rights or options in existence on the date hereof, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell or deliver, or agree to issue, sell or deliver, any shares of any class of capital stock of ENSA, any securities convertible into any such shares or convertible into securities in turn so convertible or any options, warrants or other rights calling for the issuance, sale or delivery of any such shares or convertible securities; (c) encumber any of its properties or assets, except for Permitted Encumbrances; (d) except in the ordinary course of business (and consistent with prior practice), (i) borrow, or agree to borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assets, (iv) make or agree to make any capital expenditure in excess of $25,000 in any individual case or $100,000 in the aggregate, (v) make or permit any amendment or termination of any Contract or (iv) terminate service to any customer; (e) grant any increase in compensation to any employee (except in the ordinary course of business and consistent with prior practice), officer or director of ENSA or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior practice), officer, director or agent of ENSA; (f) enter into or make any change in any employee benefit program, except as required by law; (g) acquire control or ownership of any Person, or acquire control or ownership of the customer list or any other substantial portion of the assets of any Person, or merge, consolidate or otherwise combine with any other Person, or enter into any agreement providing for any of the foregoing; (h) except than in the ordinary course of business, change and that the Shareholders will take such action as is necessary to insure that HPI will not enter into any such transactions, and in particular will not, without the prior written consent of XxxxXxxxxxx.xxx: (a) create or incur any indebtedness other than unsecured current liabilities incurred in the ordinary course of business; (b) grant or permit to arise any mortgage, deed of trust, security interest, lien, or encumbrance of any kind; (c) sell, lease, or otherwise dispose of any of its assets other than merchandise inventories sold in the ordinary course of business; (d) declare or pay any dividends other than consistent with past practice to declare and pay dividends to the current shareholders, or repurchase or redeem any of its shares, or establish a sinking fund or other reserve for such purpose; (e) issue, sell, or grant options for the sale of any of its shares, whether or not previously authorized or issued; (f) expend any funds for capital additions or improvements other than ordinary expenditures for maintenance, repairs, and replacements; (g) acquire an interest in any material respect other business enterprise, whether for cash or in exchange for the stock or other securities of HPI; (h) increase the compensation paid to any arrangement with of its officers or directors above the level paid on the date of this Agreement as set forth in Exhibit 5.2 or agree to pay to any agentof its officers or employees any bonus, distributor severance pay, or material customer pension, whether under an existing compensation or supplier deferred compensation plan, or change the accounting practices and principles utilized in the preparation of the Financial Statements or the method of recognition of revenueotherwise; (i) propose, adopt or permit an amendment of HPI's Articles of Incorporation or HPI's Bylaws; (j) make or permit any material amendments or termination of any material contract, agreement, license or other right to which it is a party; (k) pay, discharge or satisfy any claims, liabilities or obligations (whether absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction of in the ordinary course of business consistent with past practice of liabilities reflected or reserved against in the HPI Financial Statements; (l) except in the ordinary course of business, enter into or agree to enter into any transaction except for the settlement of ENSAmaterial to HPI's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure LetterBusiness; (jm) except as required for the Series B transfer or Series C Stockholderslicense to any person or entity, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire extend, amend or modify, any shares of ENSA Common Stock or Preferred Stockrights to the HPI Intellectual Property Rights; (kn) fail duly and timely (change the accounting methods or practices followed by the due date HPI, including any change in any assumption underlying, or method of calculating, any bad debt, contingency or other reserve, except as may be required by changes in generally accepted accounting principles, make or change any material Tax election, adopt or change any Tax accounting method, file any material Return or any duly granted amendment to a material Return, and except as respects the Sales Tax Claim, enter into any material closing agreement, settle any material Tax claim or assessment, or consent to any extension thereof) or waiver of the limitation period applicable to file any material Tax Reports claim or assessment, without the prior consent of XxxxXxxxxxx.xxx, which consent will not be unreasonably withheld (for purposes of this covenant a "material" Tax Returns required to be filed with federalReturn, stateclosing agreement, local, foreign and other authoritiesTax claim or assessment shall mean such an item reflecting a Tax Liability in excess of $10,000); or (lo) unless it is contesting the same take any action that would result in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assets, or (ii) to withhold, collect the representations and pay to the proper governmental authorities, or hold warranties of HPI set forth in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action in the ordinary course of business.Agreement becoming untrue;

Restricted Activities and Transactions. Except as specifically provided herein or as otherwise consented to in writing by ERDHomeSeekers, prior to the Effective Time Closing Date, the Members will not cause or allow IRIS to take any of the Merger, ENSA shall notfollowing actions: (a) amend its certificate propose, adopt or permit an amendment of incorporation IRIS's Articles of Organization or by-lawsOperating Agreement; (b) except pursuant to conversion rights or options in existence on the date hereof, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell sell, encumber or deliver, or agree to issue, sell sell, encumber or deliver, any shares of any class of capital stock of ENSA, membership interests or any securities convertible into any such shares membership interests or convertible into securities in turn so convertible convertible, or any options, warrants warrants, or other rights calling for the issuance, sale or delivery of any such shares membership interests or convertible securitiessecurities or authorize or propose any change in its equity capitalization; (c) encumber split, combine or reclassify any of its properties membership interests or assetsissue or authorize or propose the issuance or authorization of any other securities in respect of, except in lieu of or in substitution for Permitted Encumbrances;membership interests or repurchase, redeem or otherwise acquire any shares of its membership interests, (d) mortgage or pledge any of its assets, tangible or intangible, except in the ordinary course of business, (e) except in the ordinary course of business (and consistent with prior practice)business, (i) borrow, or agree to borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty guarantee or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assets, property or rights (except for (A) dispositions of obsolete or worthless assets, (B) sales of immaterial assets not in excess of $10,000 in the aggregate and (C) leases of equipment in the ordinary course of business pursuant to commitments as set forth in the IRIS Disclosure Schedule), or (iv) make or agree to make any capital expenditure in excess of $25,000 in any individual case or $100,000 in the aggregate, (v) make or permit any amendment material amendments or termination of any Contract material contract, agreement, license or (iv) terminate service other right to any customerwhich it is a party; (ef) except in the ordinary course of business (i) grant any increase in compensation to any employee or director, (ii) amend in any respect the terms of any Plan or adopt any new Plan or similar arrangements or agreements (except in the ordinary course of business and consistent with prior practiceeach case as specifically provided in this Agreement or as required by law), officer or director of ENSA or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior practice), officer, director or agent of ENSA; (fiii) enter into or make amend any change in any employee benefit programemployment, except as required by lawseverance or similar arrangement; (g) acquire control accelerate, amend or ownership change the period of exercisability of any Person, rights to purchase securities of IRIS or acquire control or ownership of change the customer list or any other substantial portion of the assets vesting period of any Person, restricted stock of IRIS or merge, consolidate or otherwise combine with any other Person, or enter into any agreement providing authorize cash payments in exchange for any of the foregoingoutstanding IRIS Options; (h) except in the ordinary course of business, change in hire any material respect management personnel or terminate any arrangement with any agentemployee of IRIS, distributor or material customer or supplier or change the accounting practices and principles utilized except in the preparation ordinary course of business involving a Person with an annual salary of less than $10,000 and only (in the Financial Statements or the method case of recognition of revenuea new hire) pursuant to an at-will arrangement without any severance benefits; (i) acquire control or ownership of any other corporation, association, joint venture, partnership, business trust or other business entity, or acquire control or ownership of all or a substantial portion of the assets of any of the foregoing, or incorporate or form, or cause to be incorporated or formed, any corporation, association, joint venture, partnership, business trust or other business entity, or merge, consolidate or otherwise combine with any other corporation (except as provided for in this Agreement), or, except in the ordinary course of business, otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the IRIS Business; (j) except in the ordinary course of business, pay, discharge or satisfy any claims, liabilities or obligations (whether absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction of in the ordinary course of business consistent with past practice of liabilities reflected or reserved against in the IRIS Financial Statements; (k) except in the ordinary course of business, enter into or agree to enter into any transaction except for the settlement of ENSAmaterial to IRIS's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure LetterBusiness; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA Common Stock or Preferred Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports or Tax Returns required to be filed with federal, state, local, foreign and other authorities; or (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assets, or (ii) to withhold, collect and pay to the proper governmental authorities, or hold in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action except in the ordinary course of business, transfer or license to any Person or entity, or otherwise extend, amend or modify, any rights to the IRIS Intellectual Property Rights; (m) except in the ordinary course of business, enter into or amend any agreements pursuant to which any other party is granted most favored customer status or exclusive marketing, distribution or other similar rights with respect to any products of IRIS; (n) except in the ordinary course of business, change the accounting methods or practices followed by IRIS, including any change in any assumption underlying, or method of calculating, any bad debt, contingency or other reserve, except as may be required by changes in generally accepted accounting principles, make or change any material Tax election, adopt or change any Tax accounting method; or (o) allow or permit to be done any act by which any of its insurance policies may be suspended, impaired or canceled.

Restricted Activities and Transactions. Except as specifically otherwise consented to in writing by ERDOmniCall, prior to the Effective Time of the Merger, ENSA Access One shall not:not take any of the following actions (and Access One and Xxxxxx represent that except as set forth on Schedule 6.7, none of the following actions have been taken since April 1, 1999): (a) amend its certificate articles of incorporation or by-laws; (b) except pursuant to conversion rights or options in existence on the date hereof, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell or deliver, or agree to issue, sell or deliver, any shares of any class of capital stock of ENSAAccess One, any securities convertible into any such shares or convertible into securities in turn so convertible or any options, warrants or other rights calling for the issuance, sale or delivery of any such shares or convertible securities, except upon exercise of stock options referenced in Section 4.11(c); (c) encumber any of its properties or assets, except for Permitted Encumbrances; (d) except in the ordinary course of business (and consistent with prior past practice), (i) borrow, or agree to borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assets, (iv) make or agree to make any capital expenditure in excess of Twenty-Five Thousand Dollars ($25,000 25,000.00) in any individual case or Fifty Thousand Dollars ($100,000 50,000.00) in the aggregate, or (v) make or permit any amendment or termination of any Contract or (iv) terminate service to any customerContract; (e) grant any increase in compensation to any employee (except in the ordinary course of business and consistent with prior past practice), officer or director of ENSA Access One or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent listed on Schedule 6.7 hereto or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior past practice), officer, director or sales agent of ENSAlisted on Schedule 6.7 hereto; (f) enter into or make any change in any employee benefit program, except as required by law; (g) acquire control or ownership of any Person, or acquire control or ownership of the customer list or any other substantial portion of the assets of any Person, or merge, consolidate or otherwise combine with any other Person, or enter into any agreement providing for any of the foregoing; (h) except in the ordinary course of business, change in any material respect any arrangement with any sales agent, distributor or material customer or supplier or change the accounting practices and principles utilized in the preparation of the Financial Statements or the method of recognition of revenue; (i) except in the ordinary course of business, enter into or agree to enter into any transaction except for material to the settlement business of ENSA's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure LetterAccess One; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA Access One Common Stock or Preferred Access One Capital Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports reports or Tax Returns returns required to be filed with federal, state, local, foreign and other authorities; or; (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assets, or (ii) to withhold, collect and pay to the proper governmental authorities, or hold in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action in the ordinary course of business.

Restricted Activities and Transactions. Except as specifically otherwise consented to in writing by ERDAccess One, prior to the Effective Time of the Merger, ENSA OmniCall shall not:not take any of the following actions (and OmniCall represents that except as set forth on Schedule 5.2, none of the following actions have been taken since April 1, 1999): (a) amend its certificate articles of incorporation or by-laws; (b) except pursuant to conversion rights or options in existence on the date hereof, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell or deliver, or agree to issue, sell or deliver, any shares of any class of capital stock of ENSAOmniCall, any securities convertible into any such shares or convertible into securities in turn so convertible or any options, warrants or other rights calling for the issuance, sale or delivery of any such shares or convertible securities, except upon exercise of stock options referenced in Section 3.2 or pursuant to the Equity Participation Plan; (c) encumber any of its properties or assets, except for Permitted Encumbrances; (d) except in the ordinary course of business (and consistent with prior past practice), (i) borrow, or agree to borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assets, (iv) make or agree to make any capital expenditure in excess of Twenty-Five Thousand Dollars ($25,000 25,000.00) in any individual case or Fifty Thousand Dollars ($100,000 50,000.00) in the aggregate, or (v) make or permit any amendment or termination of any Contract or (iv) terminate service to any customerContract; (e) grant any increase in compensation to any employee (except in the ordinary course of business and consistent with prior past practice), officer or director of ENSA OmniCall or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent listed on Schedule 3.11 (a) hereto or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior past practice), officer, director or sales agent of ENSAlisted on Schedule 3.11 (a) hereto; (f) enter into or make any change in any employee benefit program, except as required by law; (g) acquire control or ownership of any Person, or acquire control or ownership of the customer list or any other substantial portion of the assets of any Person, or merge, consolidate or otherwise combine with any other Person, or enter into any agreement providing for any of the foregoing; (h) except in the ordinary course of business, change in any material respect any arrangement with any sales agent, distributor or material customer or supplier or change the accounting practices and principles utilized in the preparation of the Financial Statements or the method of recognition of revenue; (i) except in the ordinary course of business, enter into or agree to enter into any transaction except for material to the settlement business of ENSA's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure LetterOmniCall; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA OmniCall Common Stock or Preferred Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports reports or Tax Returns returns required to be filed with federal, state, local, foreign and other authorities; or; (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assets, or (ii) to withhold, collect and pay to the proper governmental authorities, or hold in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes ; (m) take any action, a primary purpose of this Section 5.2which is to reduce the OmniCall Debt, no unless such action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action is clearly in the ordinary course of businessaccordance with past OmniCall practice and good business practices.

Restricted Activities and Transactions. Except as specifically otherwise consented to in writing by ERDGCB, prior to from the date of this Agreement through the Effective Time Date, First Savings will not, and First Savings will not permit any of the MergerFS Subsidiaries, ENSA shall notto: (a) amend its certificate of incorporation Charter or byBy-lawsLaws; (b) except pursuant to conversion rights or options in existence on the date hereof, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell or deliver, or agree to issue, sell or deliver, any shares of any class of capital stock of ENSA, First Savings or any FS Subsidiary or any securities convertible into any such shares or convertible into securities in turn so convertible shares, or any options, warrants warrants, or other rights calling for the issuance, sale or delivery of any such shares or convertible securities; (c) encumber any of its properties or assets, except for Permitted Encumbrances; (d) except in the ordinary course of business (and consistent with prior past practice), ) (i) borrow, or agree to borrow, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty guarantee or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) distribute, lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties assets, property or assetsrights, (iv) make or agree to make any capital expenditure in excess of $25,000 in any individual case or $100,000 in the aggregate, (v) make or permit any amendment to or termination of any Contract material contract or agreement, license or other right to which it is a party or (ivv) terminate service mortgage or pledge any of its assets, tangible or intangible; for purposes of this Agreement, any contract or agreement which satisfies the criteria in Section 2.10 shall be deemed a material contract or agreement. (d) grant any bonus or increase in compensation, other than increases given in conformity with past practice; provided, that in no event shall (i) any increase be given to Xxxxxxxxxx X. Xxxxxxxxxxxxx or any customer;other employee who has received an increase after October 15, 1997 or (ii) any other employee be given an increase in excess of 4% of his or her base pay. The employees who have been given retention bonus agreements are listed in Item 4.2(d) to the First Savings Disclosure Schedule. (e) grant any increase in compensation to any employee (except in the ordinary course of business and consistent with prior practice), officer or director of ENSA or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior practice), officer, director or agent of ENSA; (f) enter into or make any change in any employee benefit programEmployee Benefit Program, except as required by law; (gf) acquire control voting securities or any other ownership of interest in any Personcorporation, association, joint venture, mutual savings association, partnership, business trust or other business entity, or acquire control or ownership of the customer list all or any other a substantial portion of the assets of any Personof the foregoing, or merge, consolidate or otherwise combine with any other Personentity, or acquire any branch of any entity engaged in the business of banking, or directly or indirectly solicit or authorize the solicitation of or enter into any agreement providing for any of the foregoing; (g) directly or indirectly solicit or authorize the solicitation of or enter into any agreement or understanding or, except to the extent as may be required by law or in order to satisfy the fiduciary duties of the directors of First Savings, engage in any discussions with, or furnish any non-public information concerning First Savings or any FS Subsidiary to, any person or entity other than GCB or a representative thereof with respect to any offer or possible offer from a third party (i) to purchase shares of any class of capital stock of First Savings or any FS Subsidiary or any securities convertible into any such shares, or to acquire any option, warrant or other right to purchase or otherwise acquire any such shares or convertible securities, (ii) to make a tender or exchange offer for any shares of any class of capital stock of First Savings or any FS Subsidiary, (iii) to purchase, lease or otherwise acquire all or a substantial portion of the assets of First Savings or any FS Subsidiary, or (iv) to merge, consolidate or otherwise combine with First Savings or any FS Subsidiary; (h) except as disclosed in the ordinary course of business, change in any material respect any arrangement with any agent, distributor or material customer or supplier or change the accounting practices and principles utilized in the preparation item 4.2(h) of the Financial Statements or the method First Savings Disclosure Schedule, make any capital expenditure in excess of recognition of revenue$10,000; (i) except make, extend or roll over any loan or loan commitment which, together with all other outstanding loans and loan commitments to the same borrower and affiliates of such borrower, exceeds (x) $300,000, in the ordinary course case of businessloans secured by first mortgages on one to four family residential dwellings or (y) $150,000 (exclusive of guarantees by agencies of the United States or the State of New Jersey) for loans which are not secured by first mortgages on one to four family residential dwellings; (j) purchase any securities (whether for sale or to be held to maturity) having a maturity in excess of five years from the date hereof; or purchase more than $2,000,000 of any issue of securities issued by the United States Treasury or any other agency of the United States Government ("Government Securities"); or purchase any securities which are not Government Securities if the cost of such securities, together with the cost of all other securities then owned by First Savings or any FS Subsidiary, and issued by the same issuer or any affiliate thereof, exceeds $2,000,000; (k) offer to pay interest on accounts at the Bank at rates which exceed the historical relationship of the Bank's rates for such accounts to the prevailing rates for such accounts in the Bank's primary market area; said historical relationships are disclosed in Item 4.2(k) of the First Savings Disclosure Schedule; (l) enter into or agree to enter into any other agreement or transaction except for the settlement of ENSA's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure Letter; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA Common Stock or Preferred Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports or Tax Returns required to be filed with federal, state, local, foreign and other authorities; or (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assets, or (ii) to withhold, collect and pay to the proper governmental authorities, or hold in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action not in the ordinary course of business; or (m) Willfully take action which would or is likely to (i) adversely affect the ability of either GCB or First Savings to obtain any necessary approvals of governmental authorities required for the transactions contemplated hereby; (ii) adversely affect First Saving's ability to perform its covenants and agreements under this Agreement; or (iii) result in any of the conditions to the Merger not being satisfied; or (iv) agree in writing or otherwise to do any of the foregoing.

Restricted Activities and Transactions. Except as specifically provided herein or in the NCI Disclosure Schedule, or as otherwise consented to in writing by ERDNAVIO, prior to the Effective Time of the MergerTime, ENSA shall NCI will not: (a) amend its certificate of incorporation or by-laws; (b) except pursuant to conversion rights or options in existence on the date hereofIssue, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issuesell, sell encumber or deliver, or agree to issue, sell sell, encumber or deliver, any shares of any class of capital stock of ENSA, NCI or any securities convertible into any such shares or convertible into securities in turn so convertible convertible, or any options, warrants warrants, or other rights calling for the issuance, sale or delivery of any such shares or convertible securitiessecurities (other than options granted to employees of or consultants to NCI with per share exercise prices equal to fair market value determined in good faith by the Board of Directors of NCI and agreed to in writing by NAVIO, and vesting 25% after one year and 1/48 of the total grant per month thereafter without acceleration as a result of the occurrence of any event); or authorize or propose any change in its equity capitalization, other than the issuance of shares of NCI Common Stock upon the exercise of NCI Options; or accelerate, amend or change the period of exercisability of any rights to purchase securities of NCI or change the vesting period of any restricted stock or options to purchase stock of NCI; (b) Mortgage or pledge any of its material assets, tangible or intangible; (c) encumber Hire any management personnel or terminate (other than for cause and with a liability to NAVIO of its properties or assetsless than $25,000) any employee of NCI, except for Permitted Encumbrances; (d) except in the ordinary course of business involving a person with an annual salary of less than $50,000 and only (and in the case of a new hire) pursuant to an at-will arrangement without any severance benefits; or increase or amend the compensation to, or the terms of any agreement with, any employee or director; (d) Except for End-User Licenses granted consistent with prior practice)past practices, (i) borrowtransfer or license to any person or entity, or agree to borrowotherwise extend, amend or modify, any funds or voluntarily incur, assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assets, (iv) make or agree to make any capital expenditure in excess of $25,000 in any individual case or $100,000 in the aggregate, (v) make or permit any amendment or termination of any Contract or (iv) terminate service to any customer;NCI Intellectual Property Rights; or (e) grant any increase in compensation to any employee (except in the ordinary course of business and consistent with prior practice), officer or director of ENSA or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent or enter into any agreement to make any special bonus payment to or severance arrangement with any employee (except in the ordinary course of business and consistent with prior practice), officer, director or agent of ENSA; (f) enter Enter into or make amend any change in any employee benefit program, except as required by law; (g) acquire control or ownership of any Person, or acquire control or ownership of the customer list or agreements pursuant to which any other substantial portion of the assets of any Personparty is granted most favored customer status or exclusive marketing, distribution or merge, consolidate or otherwise combine with any other Person, or enter into any agreement providing for any of the foregoing; (h) except in the ordinary course of business, change in any material respect any arrangement with any agent, distributor or material customer or supplier or change the accounting practices and principles utilized in the preparation of the Financial Statements or the method of recognition of revenue; (i) except in the ordinary course of business, enter into or agree to enter into any transaction except for the settlement of ENSA's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure Letter; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA Common Stock or Preferred Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports or Tax Returns required to be filed with federal, state, local, foreign and other authorities; or (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or similar rights with respect to any products of its properties or assets, or (ii) to withhold, collect and pay to the proper governmental authorities, or hold in separate bank accounts for such payment, any Taxes and other assessments that are required by law to be so withheld, collected and paid or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, any Affiliated Person shall be considered an action in the ordinary course of businessNAVIO.

Restricted Activities and Transactions. Except Notwithstanding Section 6.1 hereof and except as specifically consented to provided in writing by ERDthis Agreement, prior to the Effective Time of the Merger, ENSA Seller shall not: (a) amend , and shall not permit any of its certificate of incorporation or by-laws; (b) except pursuant to conversion rights or options in existence on the date hereofAffiliates to, (none of which conversion rights or options were issued or created since the end of ENSA's last fiscal year) issue, sell or deliverengage, or agree to issueengage, sell in any one or delivermore of the following activities or transactions without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld: (i) enter into or consummate any shares “acquisition proposal” (as used in Section 6.4 below); (ii) cause to arise or permit to exist any Lien (other than Permitted Liens) upon any of the Transferred Assets unless such Lien is discharged prior to the Closing Date; (iii) enter into or amend in any class of capital stock of ENSA, material respect any securities convertible into any such shares or convertible into securities in turn so convertible Assumed Contract or any optionsContract containing any Assumed Contract Right or Assumed Contract Liability; (iv) destroy any Books or Records maintained in connection with the Transferred Assets, warrants the Assumed Liabilities, the formulating, manufacturing, packaging, labeling and storing of the Products for sale in the Territory and the marketing, distribution or other rights calling for sale of the issuance, sale Products in the Territory; (v) settle any Action if such settlement imposes any continuing Liability or delivery of any such shares non-monetary obligation on or convertible securities; (c) encumber with respect to any of its properties the Transferred Assets, the Assumed Liabilities, the formulating, manufacturing, packaging, labeling and storing of the Products for sale in the Territory or assetsthe marketing, except distribution or sale of the Products in the Territory; (vi) initiate any litigation, suit, mediation or arbitration relating to the Transferred Assets, the Assumed Liabilities, the formulating, manufacturing, packaging, labeling and storing of the Products for Permitted Encumbrances; sale in the Territory or the marketing, distribution or sale of the Products in the Territory; (dvii) except or commit or cause to be committed any Condition that will result in a material breach or violation or (with or without notice or passage of time, or both) constitute a material default under any Assumed Contract or any Contract containing any Assumed Contract Right or Assumed Contract Liability; (viii) enter into or become bound by any contract or commitment relating to the Transferred Assets, the Assumed Liabilities, the formulating, manufacturing, packaging, labeling and storing of the Products for sale in the Territory or the marketing, distribution or sale of the Products in the Territory, other than contracts or commitments that are entered into in the ordinary course of the business (and in a manner consistent with prior practice)past practices; (ix) cancel, (i) borrowcompromise, release or agree to borrow, waive any funds right of material value of the Seller or voluntarily incur, assume or become subject to, whether directly or by way of guaranty or otherwise, any obligation or liability (absolute or contingent), (ii) cancel or agree to cancel any debts or claims, (iii) lease, sublease, sell or otherwise transfer, agree to lease, sublease, sell or otherwise transfer, or grant or agree to grant any preferential rights to lease or otherwise acquire, any of its properties or assetsAffiliates related to the Transferred Assets, (iv) make or agree to make any capital expenditure in excess of $25,000 in any individual case or $100,000 in the aggregate, (v) make or permit any amendment or termination of any Contract or (iv) terminate service to any customer; (e) grant any increase in compensation to any employee (except other than in the ordinary course of business and in a manner consistent with prior past practice), officer or director of ENSA or any sales agent, terminate any employment agreement or sales agency agreement with any sales agent or enter into any agreement to make any special bonus payment to or severance arrangement with any employee ; (except in the ordinary course of business and consistent with prior practice), officer, director or agent of ENSA; (fx) enter into or make any change in any employee benefit program, except as required by law; (g) acquire control Law, make or ownership change any Tax election affecting the Transferred Assets, the Assumed Liabilities, the formulating, manufacturing, packaging, labeling and storing of any Personthe Products for sale in the Territory or the marketing, distribution or sale of the Products in the Territory, or acquire control or ownership take any position with respect to the Transferred Assets, the Assumed Liabilities, the formulating, manufacturing, packaging, labeling and storing of the customer list Products for sale in the Territory or any other substantial portion the marketing, distribution or sale of the assets Products in the Territory on any Tax Return filed after the date of any Personthis Agreement, in each case that is inconsistent with the elections made or merge, consolidate positions taken in preparing or otherwise combine with any other Person, or enter into any agreement providing filing similar Tax Returns in prior taxable periods; (xi) changes the Specifications for any of the foregoing; (h) except in the ordinary course of business, change Product in any material respect any arrangement with any agent, distributor or material customer or supplier or change the accounting practices and principles utilized in the preparation of the Financial Statements or the method of recognition of revenue; (i) except in the ordinary course of business, enter into or agree to enter into any transaction except for the settlement of ENSA's litigation with ENSR, Inc. as described in Section 3.14 of the ENSA Disclosure Letter; (j) except as required for the Series B or Series C Stockholders, declare or pay any dividend or make any distribution on its capital stock in cash, stock or property, redeem, repurchase or otherwise acquire any shares of ENSA Common Stock or Preferred Stock; (k) fail duly and timely (by the due date or any duly granted extension thereof) to file any Tax Reports or Tax Returns required to be filed with federal, state, local, foreign and other authorities; or (l) unless it is contesting the same in good faith and, if appropriate, has established reasonable reserves therefor, fail either (i) promptly to pay any Taxes that are shown on such returns or otherwise lawfully levied or assessed upon or payable by it or on or with respect to any of its properties or assetsrespect, or (iixii) take any action or omit to withhold, collect take any action that would knowingly cause the representations and pay to warranties of the proper governmental authorities, or hold Seller contained in separate bank accounts for such payment, any Taxes and other assessments that are required by law Article IV hereof to be so withheld, collected and paid untrue or so held. For purposes of this Section 5.2, no action by ENSA involving, or for the direct or indirect benefit of, inaccurate in any Affiliated Person shall be considered an action in the ordinary course of businessmaterial respect.