IF REQUIRED BY THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE
35
"HSR ACT") AND IF THE APPROPRIATE FILING OF A PRE-MERGER NOTIFICATION AND REPORT
FORM PURSUANT TO THE HSR ACT HAS NOT BEEN FILED PRIOR TO THE DATE OF THIS
AGREEMENT, EACH PARTY HERETO AGREES TO MAKE AN APPROPRIATE FILING OF A
PRE-MERGER NOTIFICATION AND REPORT FORM WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT WITHIN FIVE (5) BUSINESS DAYS AFTER THE DATE OF
THIS AGREEMENT AND TO SUPPLY PROMPTLY ANY ADDITIONAL INFORMATION AND DOCUMENTARY
MATERIAL THAT MAY BE REQUESTED PURSUANT TO THE HSR ACT. THE PARTIES HERETO WILL
NOT TAKE ANY ACTION THAT WILL HAVE THE EFFECT OF DELAYING, IMPAIRING OR IMPEDING
THE RECEIPT OF ANY REQUIRED APPROVALS AND SHALL PROMPTLY RESPOND TO ANY REQUESTS
FOR ADDITIONAL INFORMATION FROM ANY GOVERNMENTAL AUTHORITY (AS DEFINED IN
SECTION 9.12) OR FILINGS IN RESPECT THEREOF. HARBOR SHALL PAY ALL FILING AND
RELATED FEES IN CONNECTION WITH ANY SUCH FILINGS WHICH MUST BE MADE BY ANY OF
THE PARTIES UNDER THE HSR ACT. HARBOR HEREBY COVENANTS AND AGREES TO USE ITS
REASONABLE BEST EFFORTS TO SECURE EARLY TERMINATION OF ANY WAITING PERIODS UNDER
THE HSR ACT, INCLUDING WITHOUT LIMITATION, IF NECESSARY, PROMPTLY OFFERING TO
SELL ANY OF ITS ASSETS OR BUSINESS AS MAY BE NECESSARY TO SECURE SUCH
TERMINATION.
(B)
HARBOR AND THE COMPANY SHALL USE THEIR GOOD
FAITH COMMERCIALLY REASONABLE EFFORTS TO OBTAIN THE CONSENTS OF THIRD PARTIES
LISTED IN SECTION 2.2 OF THE DISCLOSURE SCHEDULE, INCLUDING (I) PROVIDING TO
SUCH THIRD PARTIES SUCH FINANCIAL STATEMENTS AND OTHER FINANCIAL INFORMATION AS
SUCH THIRD PARTIES MAY REASONABLY REQUEST, (II) AGREEING TO COMMERCIALLY
REASONABLE ADJUSTMENTS TO THE TERMS OF THE AGREEMENTS WITH SUCH THIRD PARTIES
(PROVIDED THAT NEITHER PARTY HERETO SHALL BE REQUIRED TO AGREE TO ANY INCREASE
IN THE AMOUNT PAYABLE WITH RESPECT THERETO) AND (III) EXECUTING AGREEMENTS TO
EFFECT THE ASSUMPTION OF SUCH AGREEMENTS ON OR BEFORE THE CLOSING DATE.
4.5
Further Action. Each of the parties hereto
shall use its respective commercially reasonable efforts to take or cause to be
taken all appropriate action, do or cause to be done all things necessary,
proper or advisable, and execute and deliver all such documents and other
papers, as may be required to carry out the provisions of this Agreement and
consummate and make effective the transactions contemplated by this Agreement.
4.6
Public Announcements.
(A)
HARBOR, ON THE ONE HAND, AND THE COMPANY,
ON THE OTHER HAND, SHALL CONSULT WITH EACH OTHER BEFORE ISSUING, AND PROVIDE
EACH OTHER THE OPPORTUNITY TO COMMENT UPON AND APPROVE OR DISAPPROVE IN WRITING,
ANY PRESS RELEASE OR OTHER PUBLIC STATEMENTS WITH RESPECT TO THE INITIAL PUBLIC
ANNOUNCEMENT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND SHALL NOT
ISSUE ANY SUCH PRESS RELEASE OR MAKE ANY SUCH PUBLIC STATEMENT PRIOR TO SUCH
WRITTEN APPROVAL, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
(B)
SUBJECT TO SECTION 4.6(A), THE COMPANY AND
THE STOCKHOLDERS ACKNOWLEDGE THAT, (I) UPON EXECUTION OF THIS AGREEMENT, HARBOR
WILL BE