OR ANY COURT, TRIBUNAL, OR
JUDICIAL OR ARBITRAL BODY.
(F)
"MATERIAL ADVERSE EFFECT" MEANS A
MATERIAL ADVERSE EFFECT ON THE FINANCIAL CONDITION OR BUSINESS OF THE COMPANY OR
HARBOR, AS APPLICABLE, EXCEPT FOR ANY SUCH EFFECTS RESULTING FROM (I) THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ANNOUNCEMENT THEREOF,
(II) CHANGES IN GENERAL ECONOMIC OR POLITICAL CONDITIONS OR THE SECURITIES
MARKETS IN GENERAL, (III) CHANGES, AFTER THE DATE OF THIS AGREEMENT, IN
CONDITIONS GENERALLY APPLICABLE TO BUSINESSES IN THE SAME INDUSTRIES AS THE
COMPANY OR HARBOR, AS APPLICABLE, INCLUDING CHANGES IN LAWS GENERALLY APPLICABLE
TO SUCH BUSINESSES OR INDUSTRY; PROVIDED THAT SUCH CHANGES DO NOT
DISPROPORTIONATELY AFFECT THE COMPANY OR HARBOR, AS APPLICABLE; OR (IV) CHANGES
IN GAAP OR ITS APPLICATION.
(G)
"NET COMPANY DEBT" MEANS COMPANY DEBT LESS,
TO THE EXTENT A POSITIVE NUMBER, CASH ON THE COMPANY'S BALANCE SHEET.
(H)
"PERSON" MEANS AN INDIVIDUAL, CORPORATION,
PARTNERSHIP, ASSOCIATION, TRUST, ANY UNINCORPORATED ORGANIZATION OR ANY OTHER
ENTITY.
(I)
"SELLING EXPENSES" MEANS ALL OF THE
COSTS AND EXPENSES INCURRED BY THE COMPANY AND THE STOCKHOLDERS IN CONNECTION
WITH THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING,
WITHOUT LIMITATION, FEES AND EXPENSES OF FINANCIAL ADVISORS, ATTORNEYS,
ACCOUNTANTS AND CONSULTANTS, PAYABLE IN ACCORDANCE WITH SECTION 9.11 HEREOF AND,
SOLELY WITH RESPECT TO THE EXPENSES DESCRIBED IN SECTION 9.11(B)(V) OF THIS
AGREEMENT, A REASONABLE ACCOUNTING OF SUCH EXPENSES SHALL HAVE BEEN PROVIDED TO
HARBOR NO LATER THAN TWO (2) DAYS PRIOR TO THE CLOSING DATE.
60
(J)
"SUBSIDIARY" OF A PERSON MEANS ANY
CORPORATION MORE THAN FIFTY (50%) PERCENT OF WHOSE OUTSTANDING VOTING
SECURITIES, OR ANY PARTNERSHIP, LIMITED LIABILITY COMPANY JOINT VENTURE OR OTHER
ENTITY MORE THAN FIFTY PERCENT (50%) OF WHOSE TOTAL EQUITY INTEREST, IS DIRECTLY
OR INDIRECTLY OWNED BY SUCH PERSON.
(K)
"TRANSACTION DOCUMENTS" MEAN THIS AGREEMENT
(INCLUDING THE EXHIBITS AND THE DISCLOSURE SCHEDULE), THE ESCROW AGREEMENT, THE
REGISTRATION RIGHTS AGREEMENT AND THE ROLLOVER STOCKHOLDER LETTER AGREEMENTS.
9.13
Terms Defined Elsewhere. The following terms are
defined elsewhere in this Agreement, as indicated below:
Defined Term
Section
2007/2008 EBITDA
1.5(d)
2007 Contingent Payment Shortfall
1.5(d)
2007 EBITDA
1.5(d)
Accountant
1.6(b)
Affiliate
9.12
Aggregate Value
1.2(b)
Agreement
Preamble
AMEX
1.5(c)
Arbitrators
9.6(a)
Award Agreement
Preamble
Base Balance Sheet
2.5(a)
Base Working Capital
1.6(a)
Benefit Plans
2.15(a)
Business Combination
4.7(a)
Carve-Out Claims
7.3(c)
Cash Purchase Price
1.2(b)
Claim
5.3
Closing
1.7
Closing Consideration
1.2(b)
Closing Date
1.7
Closing Working Capital
1.6(b)
Code
1.12
Company
Preamble
61
Defined Term
Section
Company Bonus Plan
Recitals
Company Bylaws
2.1
Company Charter
2.1
Company Common Stock
1.2(a)
Company Debt
9.12
Company EBITDA
1.5(d)
Company Employees
5.1(a)
Company Shares
Recitals
Company Subsidiary
2.4
Company Warrants
1.2(a)
Confidentiality Agreement
4.3
Contingent Payment
1.5
Contingent Payment Amount
1.5(d)
Contingent Payment Note
1.5(c)
Contingent Payment Report
1.5(e)
Contingent Payment Shares
4.16(a)
Continuing Stockholders
1.3(b)
Continuing Stockholder Value
1.2(b)
Contributing Stockholder
4.1
Control
9.12
Customers
2.19
Deductible
7.3(a)
Disclosure Schedule
2
Discretionary Bonuses
1.4
Distributors
2.19
EBITDA
1.5(d)
Employer Payroll Taxes
2.9(d)
Encumbrances
1.1
Environment
2.18(f)
Environmental Laws
2.18(f)
Equity Incentive Plan