POWERS
OR OTHER DOCUMENTS COMPLYING WITH SECTION 1.1;
(D)
CERTIFICATES ISSUED BY THE SECRETARY OF
STATE OF THE STATE OF DELAWARE CERTIFYING THAT (I) THE COMPANY HAS LEGAL
EXISTENCE AND IS IN GOOD STANDING, AND (II) THE COPY OF THE COMPANY CHARTER
ATTACHED THERETO IS TRUE AND CORRECT;
(E)
A CERTIFICATE EXECUTED BY THE SECRETARY OF
THE COMPANY CERTIFYING (I) THE NAMES OF THE OFFICERS OF THE COMPANY AUTHORIZED
TO SIGN THIS AGREEMENT AND THE OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS
EXECUTED BY THE COMPANY PURSUANT HERETO, TOGETHER WITH
46
THE TRUE SIGNATURES OF SUCH OFFICERS AND (II) COPIES OF CONSENT ACTIONS TAKEN BY
THE BOARD OF DIRECTORS OF THE COMPANY AUTHORIZING THE APPROPRIATE OFFICERS OF
THE COMPANY TO EXECUTE AND DELIVER THIS AGREEMENT AND ALL AGREEMENTS, DOCUMENTS
AND INSTRUMENTS EXECUTED BY THE COMPANY PURSUANT HERETO, AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY;
(F)
THE ROLLOVER STOCKHOLDER LETTER
AGREEMENTS AND THE AWARD AGREEMENTS;
(G)
THE STOCKHOLDER RELEASES;
(H)
THE OPINION OF COUNSEL OF GOODWIN PROCTER
LLP;
(I)
RESIGNATIONS OF EACH OF THE DIRECTORS OF
THE COMPANY, OTHER THAN JOHN S. JENSEN;
(J)
ORIGINALS OF ALL MINUTE BOOKS, STOCK
TRANSFER BOOKS AND OTHER CORPORATE RECORDS OF THE COMPANY; AND
(K)
SUCH OTHER SUPPORTING DOCUMENTS AND
CERTIFICATES AS ARE REQUIRED PURSUANT TO THE TERMS OF THIS AGREEMENT.
Section 7.
Survival of Representations
and Warranties; Transaction-Related Indemnification.
7.1
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS; STOCKHOLDERS' AGREEMENT CONCERNING RELEASES FROM ESCROW FUND.
(A)
ALL REPRESENTATIONS, WARRANTIES, COVENANTS,
AND AGREEMENTS OF THE COMPANY, THE STOCKHOLDERS AND HARBOR MADE IN THIS
AGREEMENT, IN THE DISCLOSURE SCHEDULE AND ALL AGREEMENTS, DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH (I) SHALL BE DEEMED TO
HAVE BEEN RELIED UPON BY THE PARTY OR PARTIES TO WHOM THEY ARE MADE, AND SHALL
SURVIVE THE CLOSING AND (II) SHALL BIND THE PARTIES' SUCCESSORS AND ASSIGNS
(INCLUDING, WITHOUT LIMITATION, ANY SUCCESSOR TO THE COMPANY BY WAY OF
ACQUISITION, MERGER OR OTHERWISE), WHETHER SO EXPRESSED OR NOT, AND, EXCEPT AS
OTHERWISE PROVIDED IN THIS AGREEMENT, ALL SUCH REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS SHALL INURE TO THE BENEFIT OF THE PARTIES (SUBJECT TO
SECTION 9.10 BELOW) AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WHETHER SO
EXPRESSED OR NOT.
(B)
THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN SECTION 2 AND SECTION 3 HEREOF (EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
UNDER SECTION 2.15 AND 2.18) SHALL EXPIRE AND TERMINATE AND BE OF NO FURTHER
FORCE AND EFFECT AFTER THE FIRST ESCROW RELEASE DATE, EXCEPT THAT ANY WRITTEN
CLAIM FOR BREACH THEREOF MADE PRIOR TO SUCH EXPIRATION DATE AND DELIVERED TO THE
PARTY AGAINST WHOM SUCH INDEMNIFICATION IS SOUGHT SHALL SURVIVE THEREAFTER AND,
AS TO ANY SUCH CLAIM, SUCH APPLICABLE EXPIRATION WILL NOT EFFECT THE RIGHTS TO
INDEMNIFICATION OF THE PARTY MAKING SUCH CLAIM; PROVIDED, HOWEVER, THAT (I) THE
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS AND THE COMPANY CONTAINED IN
SECTION 2.1 (ORGANIZATION AND CORPORATE POWER OF THE COMPANY), SECTION 2.2
(AUTHORIZATION AND NON-CONTRAVENTION), AND SECTION 2.3 (CAPITALIZATION) SHALL
SURVIVE INDEFINITELY AND (II) ANY CLAIM BY