ANY LABOR UNION OR ADOPTING OR ESTABLISHING ANY NEW COLLECTIVE
BARGAINING AGREEMENT, OR (V) MAKING ANY DETERMINATIONS UNDER ANY COLLECTIVE
BARGAINING AGREEMENT;
(L)
GRANTING ANY IRREVOCABLE POWER OF
ATTORNEY; OR
34
(M)
ENTERING INTO ANY EXECUTORY AGREEMENT,
COMMITMENT OR UNDERTAKING TO DO ANY OF THE ACTIVITIES PROHIBITED BY THE
FOREGOING PROVISIONS.
Notwithstanding the foregoing, prior to the Closing the Company shall be
permitted to (i) pay down existing indebtednesses in the ordinary course of
business; (ii) subject to Step 1 of Section 4.1 of the Disclosure Schedules,
effect a transfer of capital stock (or the value represented thereby) from the
Stockholder identified on Schedule A-2 hereto as the "Contributing Stockholder"
to members of the Company's management and certain other employees of the
Company by (A) accepting a contribution of up to 1,730,740 shares of Company
Common Stock from the Contributing Stockholder, and (B) issuing up to 1,730,740
shares of Company Common Stock (but not more than the shares contributed by the
Contributing Stockholder) to the Persons (who will thereafter become
Stockholders) identified on Schedule A-2 hereto (the "Management Equity
Transfers"); (iii) pay all unpaid dividends that were declared prior to the date
of this Agreement; and (iv) pay the Discretionary Bonuses. The transactions
contemplated by clauses (ii) and (iv) of the preceding sentence are more fully
described in Section 4.1 of the Disclosure Schedule.
4.2
Access to Information.
(A)
WITHOUT UNDUE DISRUPTION OF ITS BUSINESS,
BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING DATE, THE COMPANY SHALL GIVE
HARBOR AND ITS REPRESENTATIVES REASONABLE ACCESS UPON REASONABLE NOTICE AND
DURING TIMES MUTUALLY CONVENIENT TO HARBOR AND TO THE EXECUTIVE OFFICERS OF THE
COMPANY TO THE FACILITIES, PROPERTIES, EMPLOYEES, BOOKS, AND RECORDS OF THE
COMPANY AND THE COMPANY SUBSIDIARY AS FROM TIME TO TIME MAY BE REASONABLY
REQUESTED.
(B)
ANY SUCH INVESTIGATION BY HARBOR SHALL NOT
UNREASONABLY INTERFERE WITH ANY OF THE BUSINESSES OR OPERATIONS OF THE COMPANY
AND THE COMPANY SUBSIDIARY. HARBOR SHALL NOT, PRIOR TO THE CLOSING DATE, HAVE
ANY CONTACT WHATSOEVER WITH RESPECT TO THE COMPANY OR THE COMPANY SUBSIDIARY OR
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WITH ANY
PARTNER, LENDER, GROUND LESSOR, VENDOR, SUPPLIER, EMPLOYEE OR CONSULTANT OF THE
COMPANY OR THE COMPANY SUBSIDIARY, EXCEPT IN CONSULTATION WITH THE COMPANY AND
THEN ONLY WITH THE EXPRESS PRIOR APPROVAL OF THE COMPANY, WHICH SHALL NOT
UNREASONABLY BE WITHHELD. HARBOR SHALL NOT BE PERMITTED TO CONDUCT ANY INVASIVE
TESTS ON ANY REAL PROPERTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY.
4.3
Confidentiality. The parties shall continue to
be bound by the terms and conditions of that certain Confidentiality,
Non-Disclosure and Non-Solicitation Agreement, dated May 24, 2006 by and between
the Company and Harbor until the Closing Date (the "Confidentiality Agreement").
4.4
Regulatory and Other Authorizations; Consents.
(A)
THE COMPANY AND HARBOR SHALL USE THEIR GOOD
FAITH COMMERCIALLY REASONABLE EFFORTS TO OBTAIN THE AUTHORIZATIONS, CONSENTS,
ORDERS AND APPROVALS NECESSARY FOR THEIR EXECUTION AND DELIVERY OF, AND THE
PERFORMANCE OF THEIR OBLIGATIONS PURSUANT TO, THIS AGREEMENT.