REQUEST BY THE COMMISSION FOR
AMENDMENTS OR SUPPLEMENTS TO, THE INFORMATION STATEMENT AND SHALL SUPPLY BUYER
WITH COPIES OF ALL CORRESPONDENCE BETWEEN SELLER OR ANY OF ITS REPRESENTATIVES
AND THE COMMISSION WITH RESPECT TO THE INFORMATION STATEMENT. SELLER SHALL USE
ITS REASONABLE BEST EFFORTS TO RESPOND TO ANY COMMENTS FROM THE COMMISSION WITH
RESPECT TO THE PRELIMINARY INFORMATION STATEMENT AND TO MAKE ANY FURTHER FILINGS
(INCLUDING AMENDMENTS OR SUPPLEMENTS THERETO OR, IF NECESSARY OR APPROPRIATE,
AMENDMENTS TO ANY PERIODIC REPORT FILED BY SELLER WITH THE COMMISSION) IN
CONNECTION THEREWITH THAT SELLER SHALL DEEM NECESSARY, PROPER OR DESIRABLE AND
SHALL CAUSE THE DEFINITIVE INFORMATION STATEMENT TO BE MAILED TO SELLER'S
STOCKHOLDERS AT THE EARLIEST PRACTICABLE TIME. IF AT ANY TIME PRIOR TO THE
CLOSING DATE, ANY EVENT SHALL OCCUR RELATING TO BUYER, SELLER OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, PARTNERS OR AFFILIATES WHICH SHOULD BE DESCRIBED
IN AN AMENDMENT OR SUPPLEMENT TO THE INFORMATION STATEMENT, SUCH PARTY SHALL
INFORM THE OTHER PROMPTLY AFTER BECOMING AWARE OF SUCH EVENT. WHENEVER BUYER OR
SELLER LEARN OF THE OCCURRENCE OF ANY EVENT WHICH SHOULD BE DESCRIBED IN AN
AMENDMENT OF, OR A SUPPLEMENT TO, THE INFORMATION STATEMENT, THE PARTIES SHALL
COOPERATE TO PROMPTLY CAUSE SUCH AMENDMENT OR SUPPLEMENT TO BE PREPARED, FILED
WITH AND CLEARED BY THE COMMISSION AND, IF REQUIRED BY APPLICABLE LAW,
DISSEMINATED TO THE PERSONS AND IN THE MANNER REQUIRED.
5.07
SHAREHOLDER APPROVAL. SELLER SHALL DELIVER TO BUYER IMMEDIATELY UPON
THE EXECUTION OF THIS AGREEMENT, AN IRREVOCABLE WRITTEN CONSENT OF STOCKHOLDERS
ON THE FORM SET FORTH AS EXHIBIT C, EXECUTED BY CIP CAPITAL LP, SELWAY PARTNERS,
LLC, CSSMK, LLC, SELWAY MANAGEMENT, INC., SCP PRIVATE EQUITY PARTNERS II, LLC
AND MITCHELL KLEIN (INCLUDING AFFILIATES), WHO TOGETHER SHALL HOLD NO LESS THAN
18,336,295 SHARES, OR APPROXIMATELY 80% OF THE VOTES ENTITLED TO BE CAST.
5.08
NO-SHOP PROVISION. FROM THE DATE HEREOF UNTIL THE CLOSING DATE, THE
SELLER SHALL NOT:
(A)
ENTER INTO ANY AGREEMENT, UNDERSTANDING OR ARRANGEMENT RELATING TO
ANY PROPOSAL, PLAN, AGREEMENT, UNDERSTANDING OR ARRANGEMENT CONTEMPLATING
(DIRECTLY OR INDIRECTLY):
(I)
ANY MERGER, CONSOLIDATION, REORGANIZATION, RECAPITALIZATION OR
SIMILAR TRANSACTION INVOLVING THE SELLER, ANY OF SELLER'S SUBSIDIARIES OR ANY
OTHER ENTITY CONTROLLED BY SELLER OR ANY OF SELLER'S SUBSIDIARIES;
(II)
ANY TRANSFER OR ISSUANCE OF ANY CAPITAL STOCK OR OTHER SECURITIES
OF SELLER, ANY OF SELLER'S SUBSIDIARIES OR ANY OTHER ENTITY CONTROLLED BY SELLER
OR ANY OF SELLER'S SUBSIDIARIES FOR THE PURPOSE OF EFFECTING A CHANGE OF CONTROL
OF SELLER, OR
(III)
ANY TRANSFER OF ANY MATERIAL ASSET OF THE BUSINESS (COLLECTIVELY,
AN "ACQUISITION PROPOSAL").
(B)
ENGAGE IN ANY DISCUSSIONS OR NEGOTIATIONS RELATING TO, ANY
ACQUISITION PROPOSAL;
27
(C)
PROVIDE ANY INFORMATION REGARDING BUYER OR ITS BUSINESS OR
OPERATIONS TO ANY PARTY (OTHER THAN TO BUYER) IN CONNECTION WITH ANY POSSIBLE
ACQUISITION PROPOSAL; OR
(D)
SOLICIT OR ENCOURAGE THE SUBMISSION OF ANY ACQUISITION PROPOSAL;
(E)
PROVIDED HOWEVER, THAT FROM THE DATE HEREOF UNTIL THE CLOSING
DATE, THE SELLER MAY ENGAGE IN DISCUSSIONS WITH OTHER PARTIES REGARDING THE
PURCHASE OF SOLELY THE ASSETS