WITH OR RESULT IN A BREACH BY
EITHER BUYER OR GUARANTOR OF, OR CONSTITUTE A DEFAULT BY BUYER OR GUARANTOR
UNDER, OR CREATE AN EVENT THAT, WITH THE GIVING OF NOTICE OR THE LAPSE OF TIME,
OR BOTH, WOULD BE A DEFAULT UNDER OR MATERIAL BREACH OF, ANY OF THE TERMS,
CONDITIONS OR PROVISIONS OF (I) ANY MATERIAL INDENTURE, MORTGAGE, LEASE, DEED OF
TRUST, PLEDGE, LOAN OR CREDIT AGREEMENT, LICENSE AGREEMENT OR ANY OTHER MATERIAL
CONTRACT, ARRANGEMENT OR AGREEMENT TO WHICH BUYER OR GUARANTOR, AS APPLICABLE,
IS A PARTY OR TO WHICH A MATERIAL PORTION OF BUYER'S OR GUARANTOR'S ASSETS IS
SUBJECT, (II) ITS CERTIFICATE OF INCORPORATION OR BYLAWS OR OTHER ORGANIZATIONAL
DOCUMENTS, OR (III) ANY JUDGMENT, ORDER, WRIT, INJUNCTION, DECREE OR DEMAND OF
ANY GOVERNMENTAL ENTITY WHICH MATERIALLY AFFECTS BUYER'S OR GUARANTOR'S ABILITY
TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT;
(B)
RESULT IN THE CREATION OR IMPOSITION OF ANY
ENCUMBRANCE UPON ANY MATERIAL PORTION OF THE ASSETS OF BUYER OR GUARANTOR, OR
WHICH MATERIALLY AFFECTS BUYER'S OR GUARANTOR'S
16
ABILITY TO CONDUCT ITS BUSINESS AS CONDUCTED PRIOR TO THE DATE OF THIS AGREEMENT
OR PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT; OR
(C)
REQUIRE THE CONSENT, APPROVAL OR
AUTHORIZATION OF, OR DECLARATION, FILING OR REGISTRATION WITH, ANY GOVERNMENTAL
ENTITY OR OTHER PERSON TO BE MADE OR OBTAINED BY BUYER OR GUARANTOR IN
CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY BUYER OR GUARANTOR OF
THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
3.4
LEGAL PROCEEDINGS.
THERE IS NO ACTION,
CLAIM SUIT OR PROCEEDING PENDING OR, TO BUYER'S AND GUARANTOR'S KNOWLEDGE,
THREATENED, BY OR AGAINST OR AFFECTING BUYER, BUYER'S AFFILIATES, GUARANTOR OR
GUARANTOR'S AFFILIATES THAT CHALLENGES, OR MAY HAVE THE EFFECT OF PREVENTING,
DELAYING, MAKING ILLEGAL OR OTHERWISE INTERFERING WITH THE EXECUTION AND
DELIVERY BY BUYER OR GUARANTOR OF THIS AGREEMENT OR ANY OF THE TRANSACTION
AGREEMENTS OR THE PERFORMANCE OF BUYER OR GUARANTOR HEREUNDER OR THEREUNDER.
3.5
PARENT COMPANY.
GUARANTOR OWNS ALL OF THE
ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF BUYER.
3.6
BROKERS.
ALL NEGOTIATIONS RELATIVE TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN CARRIED OUT BY
BUYER DIRECTLY WITH SELLER WITHOUT THE INTERVENTION OF ANY PERSON ON BEHALF OF
BUYER IN SUCH MANNER AS TO GIVE RISE TO ANY VALID CLAIM BY ANY PERSON AGAINST
SELLER FOR A FINDER'S FEE, BROKERAGE COMMISSION OR SIMILAR PAYMENT.
3.7
TRANSFERRED EMPLOYEES.
BUYER HAS OFFERED
CONTINUED EQUIVALENT EMPLOYMENT TO AT LEAST 95% OF THE BUSINESS EMPLOYEES WITH
"CALIFORNIA" OPPOSITE HIS OR HER NAME ON SCHEDULE 2.6.
EACH BUSINESS EMPLOYEE
THAT ACCEPTS SUCH OFFER OF EMPLOYMENT IS REFERRED TO HEREIN AS A "TRANSFERRED
EMPLOYEE."
ARTICLE IV
COVENANTS
4.1
EMPLOYEE MATTERS.
(A)
EMPLOYMENT. EFFECTIVE AS OF THE EFFECTIVE
DATE IMMEDIATELY FOLLOWING THE TERMINATION OF THEIR EMPLOYMENT WITH THE SELLER,
BUYER SHALL HIRE ALL TRANSFERRED EMPLOYEES.
(B)
CERTAIN BENEFIT PAYMENTS.
TO THE EXTENT IT
HAS NOT DONE SO PRIOR TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, ON THE EFFECTIVE DATE, SELLER SHALL PAY OR OTHERWISE DISCHARGE