AND HAVE NO
FURTHER FORCE OR EFFECT OTHER THAN THOSE AGREEMENTS THAT ARE NOT MARKED ON
SECTION 2.2(A) AND SECTION 2.2(B) OF THE DISCLOSURE SCHEDULES AS BEING
TERMINATED CONCURRENTLY WITH THE CLOSING, WITH RESPECT TO WHICH CONSENT SHALL
HAVE BEEN OBTAINED PURSUANT TO SECTION 6.2(C).
(F)
EACH ROLLOVER STOCKHOLDER SHALL HAVE
EXECUTED AND DELIVERED A LETTER AGREEMENT IN THE FORM OF EXHIBIT H ATTACHED
HERETO AND AN AWARD AGREEMENT REASONABLY SATISFACTORY TO HARBOR.
(G)
EACH OF THE STOCKHOLDERS IDENTIFIED IN
SECTION 6.2(H) OF THE DISCLOSURE SCHEDULE SHALL HAVE EXECUTED A NON-COMPETE AND
NON-SOLICITATION AGREEMENT IN THE FORM ATTACHED HERETO AS EXHIBIT I.
(H)
EACH OF THE STOCKHOLDERS SHALL HAVE EXECUTED
A STOCKHOLDER RELEASE IN THE FORM ATTACHED HERETO AS EXHIBIT B (THE "STOCKHOLDER
RELEASES").
(I)
HARBOR SHALL HAVE RECEIVED AN OPINION OF
COUNSEL FROM GOODWIN PROCTER LLP IN THE FORM ATTACHED HERETO AS EXHIBIT J.
(J)
THE EMPLOYMENT AGREEMENT, DATED AS OF
DECEMBER 31, 2003, BY AND BETWEEN THE COMPANY AND JOHN S. JENSEN, SHALL HAVE
BEEN EXTENDED FOR ONE (1) ADDITIONAL YEAR, THROUGH DECEMBER 31, 2008.
44
6.3
CONDITIONS TO OBLIGATIONS OF THE COMPANY AND
THE STOCKHOLDERS TO EFFECT THE CLOSING.
(A)
EACH OF THE REPRESENTATIONS AND WARRANTIES
OF HARBOR CONTAINED IN SECTION 3 SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (EXCEPT FOR SUCH REPRESENTATIONS AND WARRANTIES THAT ARE QUALIFIED BY
THEIR TERMS AS TO MATERIALITY, WHICH REPRESENTATIONS AND WARRANTIES AS SO
QUALIFIED SHALL BE TRUE IN ALL RESPECTS), IN EACH CASE, AS OF THE DATE OF THIS
AGREEMENT AND AS OF THE CLOSING DATE (AS THOUGH MADE ON AND AS OF THE CLOSING
DATE); EXCEPT AS WOULD NOT, DELAY, HINDER OR PREVENT THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT BY HARBOR; AND HARBOR SHALL HAVE
DELIVERED TO THE COMPANY AND THE STOCKHOLDERS A CERTIFICATE OF HARBOR'S CHIEF
EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER TO SUCH EFFECT DATED AS OF THE
CLOSING DATE AND SIGNED BY SUCH OFFICERS.
(B)
ALL COVENANTS CONTAINED IN THIS AGREEMENT TO
BE COMPLIED WITH BY HARBOR ON OR BEFORE THE CLOSING SHALL HAVE BEEN COMPLIED
WITH IN ALL MATERIAL RESPECTS, AND THE COMPANY AND THE STOCKHOLDERS SHALL HAVE
RECEIVED A CERTIFICATE FROM HARBOR TO SUCH EFFECT DATED AS OF THE CLOSING DATE
AND SIGNED BY A DULY AUTHORIZED OFFICER OF HARBOR.
(C)
IMMEDIATELY PRIOR TO THE CLOSING, HARBOR
SHALL BE IN COMPLIANCE WITH THE REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT
AND ALL OF THE SHARES OF HARBOR COMMON STOCK ISSUED OR ISSUABLE PURSUANT TO THE
TERMS OF THIS AGREEMENT SHALL BE LISTED FOR TRADING ON THE AMEX.
(D)
THE COMPANY AND THE STOCKHOLDERS SHALL HAVE
RECEIVED AN OPINION OF COUNSEL FROM DAVIS, MALM & D'AGOSTINE, P.C. IN THE FORM
ATTACHED HERETO AS EXHIBIT K.
6.4
Deliveries by Harbor to the Company and the
Stockholders. At the Closing, Harbor shall have delivered, or shall have caused
to be delivered, to the Company and the Stockholders, as the case may be, all in
form and substance reasonably satisfactory to the Company