AGGREGATE FEE OF $1,687,500 PAYABLE TO
FREMONT PARTNERS, L.L.C. AND FREMONT PARTNERS III, L.L.C., WHICH FEE SHALL BE
THE SOLE RESPONSIBILITY OF KERR AND/OR PURCHASER, NEITHER KERR NOR PURCHASER HAS
AGREED TO PAY TO ANY BROKER, FINDER, INVESTMENT BANKER OR ANY OTHER PERSON A
BROKERAGE, FINDER'S OR OTHER FEE OR COMMISSION IN CONNECTION WITH THIS AGREEMENT
OR THE ACQUISITION.
4.6
NO LITIGATION.
THERE IS NO CLAIM, ACTION, SUIT OR PROCEEDING
PENDING OR, TO THE KNOWLEDGE OF KERR AND PURCHASER, THREATENED, BEFORE ANY
GOVERNMENTAL AUTHORITY THAT PROHIBITS OR RESTRICTS, OR SEEKS TO PROHIBIT OR
RESTRICT, THE CONSUMMATION OF THE ACQUISITION.
4.7
COMMITMENT LETTERS.
KERR HAS PROVIDED TO SELLER A TRUE AND
COMPLETE COPY OF THE COMMITMENT LETTER RECEIVED BY KERR FROM WELLS FARGO BANK.
ARTICLE V
ADDITIONAL COVENANTS
5.1
CONDUCT OF BUSINESS.
FROM THE DATE HEREOF THROUGH THE CLOSING
DATE, EXCEPT AS CONTEMPLATED BY THIS AGREEMENT OR DESCRIBED ON SCHEDULE 5.1,
SELLER AGREES TO CONDUCT SELLER'S OPERATIONS IN THE ORDINARY COURSE, CONSISTENT
WITH PAST PRACTICE, AND AGREES TO:
(A)
USE ITS COMMERCIALLY REASONABLE EFFORTS TO (I) PRESERVE FOR THE
BENEFIT OF PURCHASER THE GOODWILL AND THE EXISTING RELATIONSHIPS OF SELLER WITH
ITS CUSTOMERS, SUPPLIERS AND OTHERS WITH WHOM SELLER DEALS; (II) RETAIN THE
SERVICES OF ITS KEY EMPLOYEES; (III) PERFORM ITS OBLIGATIONS UNDER THE MATERIAL
CONTRACTS; (IV) MAINTAIN, KEEP AND PRESERVE THE BUSINESS AND THE PURCHASED
ASSETS IN THE SAME CONDITION AS THE DATE HEREOF, EXCEPT THAT IN THE CASE OF ANY
PURCHASED ASSETS CONSTITUTING TANGIBLE PERSONAL PROPERTY, ORDINARY WEAR AND TEAR
AND CASUALTY IS PERMITTED; (V) PRESERVE INTACT THE BUSINESS AND ITS
ORGANIZATION; (VI) MAINTAIN BOOKS AND RECORDS IN ACCORDANCE WITH PAST PRACTICE;
AND (VII) MAINTAIN IN EFFECT THE INSURANCE COVERAGE PROVIDED UNDER THE POLICIES
SET FORTH IN SCHEDULE 3.22;
(B)
NOT WAIVE, RELEASE OR CANCEL ANY MATERIAL CLAIMS AGAINST THIRD
PARTIES OR MATERIAL DEBTS OWING TO SELLER, OTHER THAN CUSTOMER BILLING
REDUCTIONS AND WRITE-DOWNS MADE IN THE ORDINARY COURSE OF BUSINESS CONSISTENT
WITH PAST PRACTICE AND OTHER THAN IN RESPECT OF CLAIMS OR DEBTS THAT WOULD BE
EXCLUDED ASSETS;
(C)
NOT (I) GRANT ANY GENERAL INCREASE IN THE COMPENSATION OF OFFICERS
OR EMPLOYEES, EXCEPT IN ACCORDANCE WITH PRE-EXISTING CONTRACTS OR CONSISTENT
WITH PAST PRACTICE; (II) ENTER INTO ANY CONTRACT WITH ANY EMPLOYEE, OFFICER,
DIRECTOR, AFFILIATE OR ASSOCIATE OF SELLER OR ANY AFFILIATE OR ASSOCIATE OF ANY
SUCH PERSON, PROVIDED, HOWEVER, THAT THIS SHALL NOT PREVENT SELLER FROM HIRING
EMPLOYEES ON AN AT-WILL BASIS TO FILL AN OPENING VACATED BY A DEPARTING OR
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transferring employee in the ordinary course of business, provided that the
compensation being offered to the individual is consistent with other personnel
in the same or a similar position; (iii) enter into any collective bargaining
agreement or similar contract; (iv) enter into any agreement that requires
Seller to pay any severance or termination pay (or that requires that the Seller
provide a certain period of notice to an employee in advance of the effective
date of termination or pay in lieu of such advance notice)