Common use of Efforts; Consents Clause in Contracts

Efforts; Consents. (a) During the period from the date of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1), each Party shall use commercially reasonable efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other Parties in doing or causing to be done, all things necessary, proper or advisable for such Party to consummate and make effective the transactions contemplated hereby as promptly as practicable, (ii) as promptly as practicable, obtain from any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and make any notices required to be obtained or made by such Party in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required with respect to such Party under any Applicable Law, and (iv) execute or deliver any additional instruments necessary for such Party to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. The Parties shall cooperate with each other in connection with the making of all such filings and obtaining such consents, licenses, permits, waivers, approvals, authorization and orders, including providing copies of all such documents to the non-filing or non-obtaining Party and its advisors prior to filing or use and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. (b) During the period from the date of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1), Westfield LP shall use commercially reasonable efforts to raise $35.0 million in proceeds from one or more financings through its issuance of debt or, in Westfield LP’s sole and absolute discretion, equity, in order to enable Westfield LP to make the Closing Date Payment at the Closing. For avoidance of doubt, the Parties agree that the obligation of Westfield LP to use commercially reasonable efforts in the immediately preceding sentence shall not require Westfield LP to agree to issue debt other than on commercially reasonable terms. (c) As soon as reasonably practicable after the date hereof, Westfield LP shall, (i) with respect to Westfield Life Sciences Fund Limited Partnership, Westfield Life Sciences Fund II Limited Partnership and Westfield MicroCap Fund Limited Partnership, (A) cause Westfield Partners, L.L.C. to consent to the “assignment” (as defined in the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and interpreted thereunder) of the investment advisory agreement between Westfield LP and each such Westfield fund, and (B) send a written notice to the investors in such Westfield funds informing such investors of the transactions contemplated by this Agreement; (ii) with respect to Westfield Life Sciences Fund (Caymans), Inc., (A) request from such Westfield fund’s board of directors the affirmative written consent to the “assignment” of the investment advisory agreement between Westfield LP and such Westfield fund, and (B) send a written notice to the investors in such Westfield fund informing such investors of the transactions contemplated by this Agreement; provided, however, that to the extent written consent to the “assignment” referred to in this clause (ii) is not obtained within thirty (30) days after delivery of the notice with respect thereto, Westfield LP shall send a second notice again informing such Westfield fund’s board of directors of the transactions contemplated by this Agreement and again requesting the affirmative written consent to such “assignment” of their respective advisory agreements but stating that such consent shall be deemed to have been given within a reasonable period of time after the date of such second notice (subject to the board of director’s right to terminate the advisory agreement in accordance with its terms) unless such Westfield fund’s board of directors affirmatively objects in a written instrument delivered prior to the Closing; (iii) with respect to any person (other than the funds described in (i) and (ii) above and Mutual Funds as defined below)) to whom Westfield LP serves as an investment adviser or subadviser (each, a “Separate Account Client”), (1) send a notice informing such Separate Account Clients of the transactions contemplated by this Agreement and requesting the affirmative written consent to the “assignment” of their respective advisory agreements, (2) to the extent such written consent is not received by Westfield LP from a Separate Account Client within thirty (30) days after delivery of the notice with respect thereto, send a second notice again informing each such Separate Account Client of the transactions contemplated by this Agreement and again requesting affirmative written consent to the “assignment” of their respective advisory agreements but stating that their consent will be deemed to have been given within a reasonable period of time after the date of such second notice (subject to their right to terminate their advisory agreements in accordance with their respective terms) unless the Separate Account Client affirmatively objects in a written instrument delivered prior to the Closing. In addition, the Parties recognize that the transactions contemplated by this Agreement may constitute an “assignment” and, if they were to constitute an “assignment,” result in the termination of the investment advisory/subadvisory agreement between each registered open-end investment company (each, a “Mutual Fund”) and Westfield LP, under the terms thereof and the Investment Company Act of 1940, as amended (the “1940 Act”). Westfield LP shall use commercially reasonable efforts to obtain, as soon as reasonably practicable after the date hereof, such authorizations and approvals of the board of trustees of each Mutual Fund (including separate approval of disinterested trustees), as may be required by the 1940 Act (or an exemptive order with respect thereto), to obtain a new investment advisory agreement between such Mutual Fund and Westfield LP, effective at the Closing. The inclusion of this Section 4.1(c) and any actions taken or not taken pursuant hereto shall not be construed to be an admission or acknowledgment by any Party that the transactions contemplated by this Agreement constitute an “assignment” (within the meanings of either the 1940 Act or the Advisers Act, and the rules thereunder and the interpretations thereof).

Efforts; Consents. (a) During the period from the date of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1), each Party shall use commercially reasonable efforts to (i) take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other Parties in doing or causing to be done, all things necessary, proper or advisable for such Party to consummate and make effective the transactions contemplated hereby as promptly as practicable, (ii) as promptly as practicable, obtain from any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and make any notices required to be obtained or made by such Party in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyhereby or, with respect to BPFH, Westfield LLC or Westfield LP, required to prevent the occurrence of an event that would reasonably be expected to have a Westfield Material Adverse Effect, or, with respect to the WMS Entities, required to prevent the occurrence of an event that would reasonably be expected to have a WMS Material Adverse Effect, (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required with respect to such Party under any applicable federal or state securities laws or any other applicable material domestic or foreign federal, state or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, policy, guideline or other requirement currently in effect (including those of any Governmental Entity) (“Applicable Law”), and (iv) execute or deliver any additional instruments necessary for such Party to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. The Parties shall cooperate with each other in connection with the making of all such filings and obtaining such consents, licenses, permits, waivers, approvals, authorization and orders, including providing copies of all such documents to the non-filing or non-obtaining Party and its advisors prior to filing or use and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. (b) During the period from the date . For purposes of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1), Westfield LP shall use commercially reasonable efforts to raise $35.0 million in proceeds from one or more financings through its issuance of debt or, in Westfield LP’s sole and absolute discretion, equity, in order to enable Westfield LP to make the Closing Date Payment at the Closing. For avoidance of doubtAgreement, the Parties agree that term “Westfield Material Adverse Effect” means any material adverse change, event, circumstance or development with respect to, or material adverse effect on (x) the obligation Business or the assets, liabilities, capitalization, financial condition, or results of operations of Westfield LP to use commercially reasonable efforts in the immediately preceding sentence shall not require Westfield LP to agree to issue debt other than on commercially reasonable terms. (c) As soon as reasonably practicable after the date hereof, Westfield LP shall, (i) with respect to Westfield Life Sciences Fund Limited Partnership, Westfield Life Sciences Fund II Limited Partnership LLC and Westfield MicroCap Fund Limited Partnership, (A) cause Westfield Partners, L.L.C. to consent to taken as a whole, (y) the “assignment” (as defined in the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and interpreted thereunder) ability of the investment advisory agreement between Westfield LP and each such Westfield fund, and (B) send a written notice to the investors in such Westfield funds informing such investors of the transactions contemplated by this Agreement; (ii) with respect to Westfield Life Sciences Fund (Caymans), Inc., (A) request from such Westfield fund’s board of directors the affirmative written consent to the “assignment” of the investment advisory agreement between Westfield LP and such Westfield fund, and (B) send a written notice to the investors in such Westfield fund informing such investors of the transactions contemplated by this Agreement; provided, however, that to the extent written consent to the “assignment” referred to in this clause (ii) is not obtained within thirty (30) days after delivery of the notice with respect theretoBPFH, Westfield LP shall send a second notice again informing such LLC and Westfield fund’s board of directors of Partners to consummate the transactions contemplated by this Agreement and again requesting or (z) the affirmative written consent ability of Westfield LP to such “assignment” of their respective advisory agreements but stating that such consent shall be deemed to have been given within a reasonable period of time operate the Business immediately after the date of such second notice Closing, provided, however, that any change contemplated by clause (subject to the board of director’s right to terminate the advisory agreement in accordance with its termsx) unless such Westfield fund’s board of directors affirmatively objects above that results in a written instrument delivered prior to the Closing; (iii) with respect to any person (other Closing Net Revenue Run Rate of greater than the funds described dollar amount set forth in Schedule II shall not constitute a Westfield Material Adverse Effect and any change contemplated by clause (i) and (iix) above and Mutual Funds that results in a Closing Net Revenue Run Rate equal to or less than the dollar amount set forth in Schedule II shall constitute a Westfield Material Adverse Effect. The “Base Net Revenue Run Rate” shall mean the amount, calculated as defined below)) to whom Westfield LP serves as an investment adviser or subadviser (eachof January 1, a “Separate Account Client”), (1) send a notice informing such Separate Account Clients 2008 of the transactions contemplated by this Agreement and requesting the affirmative written consent to the “assignment” of their respective advisory agreements, (2) to the extent such written consent is not received by Westfield LP from a Separate Account Client within thirty (30) days after delivery of the notice with respect thereto, send a second notice again informing each such Separate Account Client of the transactions contemplated by this Agreement and again requesting affirmative written consent to the “assignment” of their respective advisory agreements but stating that their consent will be deemed to have been given within a reasonable period of time after the date of such second notice (subject to their right to terminate their advisory agreements in accordance with their respective terms) unless the Separate Account Client affirmatively objects in a written instrument delivered prior to the Closing. In addition, the Parties recognize that the transactions contemplated by this Agreement may constitute an “assignment” and, if they were to constitute an “assignment,” result in the termination of the aggregate annualized investment advisory/, investment management and subadvisory agreement between each registered open-end investment company (each, a “Mutual Fund”) and fees for all clients payable to Westfield LP, under LLC determined by multiplying the terms thereof and the Investment Company Act of 1940, as amended (the “1940 Act”). Westfield LP shall use commercially reasonable efforts to obtain, as soon as reasonably practicable after the date hereof, Assets Under Management for such authorizations and approvals of the board of trustees of each Mutual Fund (including separate approval of disinterested trustees), as may be required account by the 1940 Act (or an exemptive order with respect thereto), to obtain a new investment advisory agreement between such Mutual Fund and Westfield LP, effective at the Closing. The inclusion of this Section 4.1(c) and any actions taken or not taken pursuant hereto shall not be construed to be an admission or acknowledgment by any Party that the transactions contemplated by this Agreement constitute an “assignment” (within the meanings of either the 1940 Act or the Advisers Act, and the rules thereunder and the interpretations thereof).applicable fee rate for such

Efforts; Consents. (a) During Subject to the period from the date terms and conditions of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1)Agreement, each Party shall use commercially reasonable efforts of the parties hereto agrees to (i) take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing or causing to be done, all things necessary, proper or advisable for such Party to consummate and make effective as promptly as practicable the transactions contemplated hereby as promptly as practicable, (ii) as promptly as practicable, obtain from any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and make any notices required to be obtained or made by such Party in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required with respect to such Party under any Applicable Law, and (iv) execute or deliver any additional instruments necessary for such Party to consummate the transactions contemplated by, Merger and to fully carry out the purposes of, this Agreement. The Parties shall cooperate with each other in connection with the making foregoing. Without limiting the generality of the foregoing, each of the Company, Merger Subsidiary and Parent shall make or cause to be made all required filings with or applications to Regulatory Authorities (including under the Exchange Act, the Federal Reserve Act, and the National Bank Act, and, with respect to BNC Financial Services (if required), the New York Insurance Law, and use its best efforts to (i) obtain all necessary consents of all such filings Regulatory Authorities and obtaining such consentsother third parties, licensesnecessary for the parties to consummate the transactions contemplated hereby, permits(ii) oppose, waiverslift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby, approvals, authorization and orders, including providing copies of (iii) fulfill all such documents conditions to the non-filing or non-obtaining Party and its advisors prior to filing or use and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewiththis Agreement. (b) During Without limiting the period from foregoing, the date Company and Parent shall cooperate in promptly preparing and filing as soon as practicable, all necessary documentation, to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental and Regulatory Authorities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Merger), and to comply with the terms and including conditions of all such permits, consents, approvals and authorizations of all such Governmental Authorities. The Parent and the Closing (Company shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to the Parent or such earlier date the Company, as the case may be, and any of their respective Subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any Governmental or Regulatory Authority in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental or Regulatory Authorities necessary or advisable to consummate the transactions contemplated by this Agreement may be terminated in accordance with Section 6.1), Westfield LP shall use commercially reasonable efforts and each party will keep the other apprised of the status of matters relating to raise $35.0 million in proceeds from one or more financings through its issuance completion of debt or, in Westfield LP’s sole and absolute discretion, equity, in order to enable Westfield LP to make the Closing Date Payment at the Closing. For avoidance of doubt, the Parties agree that the obligation of Westfield LP to use commercially reasonable efforts in the immediately preceding sentence shall not require Westfield LP to agree to issue debt other than on commercially reasonable termstransactions contemplated herein. (c) As soon The Parent and the Company shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably practicable after necessary or advisable in connection with the date hereofCompany Proxy Statement or any other statement, Westfield LP shall,filing, notice or application made by or on behalf of the Parent or the Company or any of their respective Subsidiaries to any Governmental Entity or Regulatory Authority in connection with the Merger and the other transactions contemplated by this Agreement. (id) The Parent and the Company shall promptly advise and inform each other upon receiving (and the Parent shall so advise with respect to Westfield Life Sciences Fund Limited Partnership, Westfield Life Sciences Fund II Limited Partnership and Westfield MicroCap Fund Limited Partnership, (A) cause Westfield Partners, L.L.C. to consent to the “assignment” (as defined in the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and interpreted thereunder) communications received by any Affiliate of the investment advisory agreement between Westfield LP and each such Westfield fundParent) any communication, and (B) send a written notice to the investors in such Westfield funds informing such investors or oral, from any Governmental or Regulatory Authority whose consent or approval is required for consummation of the transactions contemplated by this Agreement; (ii) with respect to Westfield Life Sciences Fund (Caymans). To the extent that any such communication is in writing, Inc., (A) request from such Westfield fund’s board of directors the affirmative written consent receiving party shall furnish a copy to the “assignment” of the investment advisory agreement between Westfield LP and such Westfield fund, and (B) send a written notice to the investors in such Westfield fund informing such investors of the transactions contemplated by this Agreement; provided, however, that to the extent written consent to the “assignment” referred to in this clause (ii) is not obtained within thirty (30) days after delivery of the notice with respect thereto, Westfield LP shall send a second notice again informing such Westfield fund’s board of directors of the transactions contemplated by this Agreement and again requesting the affirmative written consent to such “assignment” of their respective advisory agreements but stating that such consent shall be deemed to have been given within a reasonable period of time after the date of such second notice (subject to the board of director’s right to terminate the advisory agreement in accordance with its terms) unless such Westfield fund’s board of directors affirmatively objects in a written instrument delivered prior to the Closing; (iii) with respect to any person (other than the funds described in (i) and (ii) above and Mutual Funds as defined below)) to whom Westfield LP serves as an investment adviser or subadviser (each, a “Separate Account Client”), (1) send a notice informing such Separate Account Clients of the transactions contemplated by this Agreement and requesting the affirmative written consent to the “assignment” of their respective advisory agreements, (2) to the extent such written consent is not received by Westfield LP from a Separate Account Client within thirty (30) days after delivery of the notice with respect thereto, send a second notice again informing each such Separate Account Client of the transactions contemplated by this Agreement and again requesting affirmative written consent to the “assignment” of their respective advisory agreements but stating that their consent will be deemed to have been given within a reasonable period of time after the date of such second notice (subject to their right to terminate their advisory agreements in accordance with their respective terms) unless the Separate Account Client affirmatively objects in a written instrument delivered prior to the Closing. In addition, the Parties recognize that the transactions contemplated by this Agreement may constitute an “assignment” and, if they were to constitute an “assignment,” result in the termination of the investment advisory/subadvisory agreement between each registered open-end investment company (each, a “Mutual Fund”) and Westfield LP, under the terms thereof and the Investment Company Act of 1940, as amended (the “1940 Act”). Westfield LP shall use commercially reasonable efforts to obtain, as soon as reasonably practicable after the date hereof, such authorizations and approvals of the board of trustees of each Mutual Fund (including separate approval of disinterested trustees), as may be required by the 1940 Act (or an exemptive order with respect thereto), to obtain a new investment advisory agreement between such Mutual Fund and Westfield LP, effective at the Closing. The inclusion of this Section 4.1(c) and any actions taken or not taken pursuant hereto shall not be construed to be an admission or acknowledgment by any Party that the transactions contemplated by this Agreement constitute an “assignment” (within the meanings of either the 1940 Act or the Advisers Act, and the rules thereunder and the interpretations thereof)party.

Efforts; Consents. (a) During Prior to the period from the date of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1)Closing, each Party shall use commercially its reasonable best efforts to (i) obtain any Consents of third Persons with respect to any Contracts to which such Party or any Acquired Company is a party as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract as a result of the execution, performance or consummation of the Transactions, provided, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, in connection with obtaining any such Consents, no Party or Acquired Company will be required to make payments to any Person or agree to any change in the terms of any Contract. Subject to the terms and conditions of this Agreement, including Section 6.3(d), prior to the Closing, each Party shall, as promptly as practicable, use its reasonable best efforts to take, or cause to be taken, all actions, other actions and do, or cause to be done, and to assist and cooperate with the all other Parties in doing or causing to be done, all things necessary, proper or advisable for such Party under applicable Law to consummate the Transactions. In furtherance and not in limitation of the foregoing, each Party shall (i) make effective the transactions contemplated hereby all appropriate filings and submissions with any Governmental Authority pursuant to any applicable Antitrust Law or otherwise as promptly as practicable, practicable and (ii) use reasonable best efforts to obtain as promptly as practicable, obtain from practicable the termination of any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and make any notices required to be obtained or made by such Party in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required with respect to such Party waiting period under any Applicable Law, and (iv) execute or deliver any additional instruments necessary for such Party to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. The Parties shall cooperate with each other in connection with the making of all such filings and obtaining such consents, licenses, permits, waivers, approvals, authorization and orders, including providing copies of all such documents to the non-filing or non-obtaining Party and its advisors prior to filing or use and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewithapplicable Antitrust Laws. (b) During In connection with, and without limiting, the period from the date of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated efforts referenced in accordance with Section 6.16.3(a), Westfield LP shall use commercially reasonable efforts but subject to raise $35.0 million Section 6.3(d), each Party will (i) cooperate in proceeds from one all respects with the other Parties in connection with any filing or more financings through its issuance submission and in connection with any investigation or other inquiry, including any Action initiated by a private party, (ii) keep the other Parties reasonably informed of debt any communication received by it from, or given by it to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding the Transactions and (iii) permit the other Parties to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in Westfield LP’s sole connection with any Action by a private party, with any other Person, and absolute discretionto the extent permitted by such applicable Governmental Authority or other Person, equity, give the other the opportunity to attend and participate in order to enable Westfield LP to make the Closing Date Payment at the Closing. For avoidance of doubt, the Parties agree that the obligation of Westfield LP to use commercially reasonable efforts in the immediately preceding sentence shall not require Westfield LP to agree to issue debt other than on commercially reasonable termssuch meetings and conferences. (c) As soon In furtherance and not in limitation of the covenants of the Parties contained in Section 6.3(a) and Section 6.3(b), but without limiting Section 6.3(d), if any objections are asserted with respect to the Transactions under any Antitrust Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private party challenging any of the Transactions as reasonably practicable after violative of any Antitrust Law or which would otherwise prevent, materially impede or materially delay the date hereofconsummation of the Transactions, Westfield LP shall,each Party shall use its reasonable best efforts to resolve any such objections or Actions so as to permit consummation of the Transactions. (d) Notwithstanding anything herein to the contrary, nothing in this Agreement shall require the Buyer: (i) to propose, negotiate, commit to or effect, by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition of, or holding separate (through the establishment of a trust or otherwise) such of Buyer’s assets, properties or businesses or of the assets, properties or businesses of the Business as would be required to be divested in order to avoid the entry of, or to effect the dissolution of, any Order which would have the effect of preventing, materially impeding or materially delaying the consummation of the Transactions or (ii) to litigate or contest any Action that is instituted (or threatened to be instituted) by a Governmental Authority or private party challenging the Transactions, or to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions (provided however that in the event of any such litigation or contest, each Party shall cooperate in all respects with the other Parties and take any and all actions to vigorously contest and resist any such Action). (e) The Parties shall in good faith consult with the other Parties with respect to Westfield Life Sciences Fund Limited Partnershipall material antitrust defense decisions, Westfield Life Sciences Fund II Limited Partnership provided that Buyer shall control and Westfield MicroCap Fund Limited Partnership, (A) cause Westfield Partners, L.L.C. to consent to direct the “assignment” (as defined in the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and interpreted thereunder) antitrust defense of the investment advisory agreement between Westfield LP and each such Westfield fundTransactions in any investigation or litigation by, and (B) send a written notice to the investors in such Westfield funds informing such investors of the transactions contemplated by this Agreement; (ii) with respect to Westfield Life Sciences Fund (Caymans)or negotiations with, Inc., (A) request from such Westfield fund’s board of directors the affirmative written consent to the “assignment” of the investment advisory agreement between Westfield LP and such Westfield fund, and (B) send a written notice to the investors in such Westfield fund informing such investors of the transactions contemplated by this Agreement; provided, however, that to the extent written consent to the “assignment” referred to in this clause (ii) is not obtained within thirty (30) days after delivery of the notice with respect thereto, Westfield LP shall send a second notice again informing such Westfield fund’s board of directors of the transactions contemplated by this Agreement and again requesting the affirmative written consent to such “assignment” of their respective advisory agreements but stating that such consent shall be deemed to have been given within a reasonable period of time after the date of such second notice (subject to the board of director’s right to terminate the advisory agreement in accordance with its terms) unless such Westfield fund’s board of directors affirmatively objects in a written instrument delivered prior to the Closing; (iii) with respect to any person (Governmental Authority or other than the funds described in (i) and (ii) above and Mutual Funds as defined below)) to whom Westfield LP serves as an investment adviser or subadviser (each, a “Separate Account Client”), (1) send a notice informing such Separate Account Clients of the transactions contemplated by this Agreement and requesting the affirmative written consent to the “assignment” of their respective advisory agreements, (2) to the extent such written consent is not received by Westfield LP from a Separate Account Client within thirty (30) days after delivery of the notice with respect thereto, send a second notice again informing each such Separate Account Client of the transactions contemplated by this Agreement and again requesting affirmative written consent to the “assignment” of their respective advisory agreements but stating that their consent will be deemed to have been given within a reasonable period of time after the date of such second notice (subject to their right to terminate their advisory agreements in accordance with their respective terms) unless the Separate Account Client affirmatively objects in a written instrument delivered prior to the Closing. In addition, the Parties recognize that the transactions contemplated by this Agreement may constitute an “assignment” and, if they were to constitute an “assignment,” result in the termination of the investment advisory/subadvisory agreement between each registered open-end investment company (each, a “Mutual Fund”) and Westfield LP, under the terms thereof and the Investment Company Act of 1940, as amended (the “1940 Act”). Westfield LP shall use commercially reasonable efforts to obtain, as soon as reasonably practicable after the date hereof, such authorizations and approvals of the board of trustees of each Mutual Fund (including separate approval of disinterested trustees), as may be required by the 1940 Act (or an exemptive order with respect thereto), to obtain a new investment advisory agreement between such Mutual Fund and Westfield LP, effective at the Closing. The inclusion of this Section 4.1(c) and any actions taken or not taken pursuant hereto shall not be construed to be an admission or acknowledgment by any Party that the transactions contemplated by this Agreement constitute an “assignment” (within the meanings of either the 1940 Act or the Advisers Act, and the rules thereunder and the interpretations thereof)Person.

Efforts; Consents. (a) During Subject to the period from the date of this Agreement to terms and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1)conditions herein provided, each Party shall of the parties hereto agrees to use commercially all reasonable efforts to (i) take, or cause to be taken, all actions, actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing or causing to be done, all things necessary, proper or advisable for such Party to consummate and make effective as promptly as practicable the transactions contemplated hereby as promptly as practicable, (ii) as promptly as practicable, obtain from any Governmental Entity or any other third party any consents, licenses, permits, waivers, approvals, authorizations, or orders, and make any notices required to be obtained or made by such Party in connection with the authorization, execution and delivery of this Merger Agreement and the consummation of the transactions contemplated hereby, (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required with respect to such Party under any Applicable Law, and (iv) execute or deliver any additional instruments necessary for such Party to consummate the transactions contemplated by, Merger and to fully carry out the purposes of, this Agreement. The Parties shall cooperate with each other in connection with the making foregoing. Without limiting the generality of the foregoing, each of the Company, Sub and Parent shall make or cause to be made all such required filings with or applications to Governmental Entities (including under the HSR Act and obtaining such consentsapplicable requirements of the FCC, licenses, permits, waivers, approvals, authorization and orders, including providing copies of all such documents to the non-filing or non-obtaining Party and its advisors prior to filing or use and, if requested, accepting all reasonable additions, deletions or changes suggested in connection therewith. (b) During the period from the date of this Agreement to and including the Closing (or such earlier date as this Agreement may be terminated in accordance with Section 6.1Communications Act), Westfield LP shall and use commercially all reasonable efforts to raise $35.0 million in proceeds from one or more financings through its issuance of debt or, in Westfield LP’s sole and absolute discretion, equity, in order to enable Westfield LP to make the Closing Date Payment at the Closing. For avoidance of doubt, the Parties agree that the obligation of Westfield LP to use commercially reasonable efforts in the immediately preceding sentence shall not require Westfield LP to agree to issue debt other than on commercially reasonable terms. (c) As soon as reasonably practicable after the date hereof, Westfield LP shall, (i) with respect obtain all necessary waivers of any Violations and other Consents of all Governmental Entities and other third parties, necessary for the parties to Westfield Life Sciences Fund Limited Partnership, Westfield Life Sciences Fund II Limited Partnership consummate the transactions contemplated hereby except for those Consents the failure of which to obtain would not have a Company Material Adverse Effect and Westfield MicroCap Fund Limited Partnershipexcept as otherwise provided herein, (Aii) cause Westfield Partnersoppose, L.L.C. to consent to lift or rescind any injunction or restraining order or other order adversely affecting the “assignment” (as defined in the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and interpreted thereunder) ability of the investment advisory agreement between Westfield LP and each such Westfield fundparties to consummate the transactions contemplated hereby, and (Biii) send a written notice fulfill all conditions to the investors in such Westfield funds informing such investors of the transactions contemplated by this Agreement; (ii) with respect to Westfield Life Sciences Fund (Caymans), Inc., (A) request from such Westfield fund’s board of directors the affirmative written consent to the “assignment” of the investment advisory agreement between Westfield LP and such Westfield fund, and (B) send a written notice to the investors in such Westfield fund informing such investors of the transactions contemplated by this Merger Agreement; provided, however, in the event Parent and the Company are informed by the FCC that the FCC will not grant the Richmond waiver as more fully described in Section 7.6(c), Parent and the Company shall promptly resubmit to the extent written FCC revised applications for consent to the “assignment” referred to in this clause (ii) is not obtained within thirty (30) days after delivery of the notice with respect thereto, Westfield LP shall send a second notice again informing such Westfield fund’s board of directors of the transactions contemplated by this Agreement Merger Agreement, which applications shall exclude WTVR-TV, Richmond, Virginia, from any transfer to Parent and again requesting Sub, and Parent and Sub will thereafter direct the affirmative written consent Company as to such “assignment” of their respective advisory agreements but stating that such consent the entity to which WTVR-TV shall be deemed to have been given within a reasonable period of time after the date of such second notice (subject to the board of director’s right to terminate the advisory agreement in accordance with its terms) unless such Westfield fund’s board of directors affirmatively objects in a written instrument delivered prior to the Closing;transferred. (iiib) with respect to any person (other than Without limiting the funds described foregoing, the Company and Parent shall use all reasonable efforts and cooperate in promptly preparing and filing (i) within 20 business days of executing this Merger Agreement, notifications under the HSR Act, and (ii) above within seven business days of executing this Merger Agreement, the FCC Applications in connection with the Merger and Mutual Funds the other transactions contemplated hereby, and to respond as defined below)) promptly as practicable to whom Westfield LP serves as an investment adviser any inquiries or subadviser requests received from the Federal Trade Commission (each, a “Separate Account Client”the "FTC"), the Antitrust Division of the United States Department of Justice (1the "Antitrust Division"), and the FCC for additional information or documentation and to respond as promptly as practicable to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters or matters relating to the FCC Applications. Each of Parent, Sub and the Company, to the extent applicable, further agrees to file contemporaneously with the filing of the FCC Applications any requests for waivers of applicable FCC rules as may be required to expeditiously prosecute such waiver requests and to diligently submit any additional information or amendments for which the FCC may ask with respect to such waiver requests. Parent and Sub further covenant to prosecute each such waiver request in good faith and to supply any information requested by the FCC in connection with such waiver in a timely and complete manner. (c) send a notice informing In furtherance and not in limitation of the foregoing, Parent and Sub shall use all reasonable efforts to resolve such Separate Account Clients of objections, if any, as may be asserted with respect to the transactions contemplated by this Merger Agreement and requesting under any antitrust, competition or trade regulatory laws, rules or regulations of any Governmental Entity ("Antitrust Laws") or any laws, rules or regulations of the affirmative written consent FCC or other Governmental Entities relating to the “assignment” broadcast, cable, newspaper, mass media or communications industries (collectively, "Communications Laws") and will take all necessary and proper steps (excluding, however, agreeing to hold separate, to place in trust and/or to divest any of their respective advisory agreementsthe businesses, product lines or assets of Parent or any of its Subsidiaries or Affiliates or of any of the Company or any of, its Subsidiaries or Affiliates) as may be reasonably required (2i) for securing the grant of the FCC Applications and for resolving any objections to the extent such written consent is not received transactions contemplated hereby of any Governmental Entities under the Antitrust Laws or Communications Laws or (ii) by Westfield LP from any domestic or foreign court or similar tribunal, in any suit brought by a Separate Account Client within thirty (30) days after delivery of the notice with respect thereto, send a second notice again informing each such Separate Account Client of private party or Governmental Entity challenging the transactions contemplated by this Merger Agreement as violative of any Antitrust Law or Communications Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that has the effect of preventing the consummation of any of such transactions; provided, however, that Parent and again requesting affirmative written consent Sub shall be permitted to request that the FCC grant a temporary waiver, extending for a period of six months after the Closing Date, of the FCC's rules and regulations to the “assignment” extent they would otherwise prohibit Parent's simultaneous ownership of their respective advisory WTVR-TV in Richmond, Virginia and Parent's interests in The Richmond Times Dispatch newspaper. (d) Each of Parent and the Company shall promptly provide the other with a copy of any inquiry or request for information (including notice of any oral request for information), pleading, order or other document either party receives from any Governmental Entities with respect to the matters referred to in this Section 7.6. (e) The Company shall use all reasonable efforts to assist Parent and Sub in any efforts they may undertake to prepay any outstanding indebtedness of the Company, including without limitation the giving of any required notices to the holders of outstanding notes of the Company and, if requested by Parent and Sub, permitting Parent and Sub to engage in a "Strategic Equity Investment", as defined under the notes originally issued by Park Communications, Inc., Park Broadcasting, Inc. and Park Newspapers, Inc. on May 13, 1996, in the Company or its Subsidiaries; provided, however, that the Company shall not be required to give any such notice unless such notice provides that the Company is not obligated to prepay any such indebtedness unless the Merger is consummated; and provided further that Parent shall indemnify and hold harmless the Stockholders for all costs, liabilities and damages (including without limitation reasonable counsel fees and expenses) that they may suffer solely as a result of the actions that the Company may take at the request of Parent and/or Sub in connection with the Company's permitting Parent and/or Sub to engage in such a Strategic Equity Investment. (f) The Company shall consult with Parent and Sub prior to entering into any new agreements but stating for programming or extensions or existing agreements for programming. (g) The Company shall use all reasonable efforts to assist Parent in producing a schedule setting forth (i) the tax basis of the assets of the Company and its Subsidiaries; (ii) the net operating loss carryover, general business credit carryover, alternative minimum tax carryover and capital loss carryover of the Company Consolidated Group available for federal, state and local income tax purposes; and (iii) all federal, state and local tax elections in effect for the Company Consolidated Group for any tax year that their consent will be deemed to have has not been given closed by applicable statute. (h) The Company shall, within a reasonable period of time 30 days after the date of such second notice (subject to their right to terminate their advisory agreements in accordance with their respective terms) unless the Separate Account Client affirmatively objects in a written instrument delivered prior to the Closing. In additionthis Merger Agreement, the Parties recognize that the transactions contemplated by this Agreement may constitute an “assignment” and, if they were to constitute an “assignment,” result in the termination of the investment advisory/subadvisory agreement between each registered open-end investment company (each, a “Mutual Fund”) and Westfield LP, under the terms thereof and the Investment Company Act of 1940, as amended (the “1940 Act”). Westfield LP shall use commercially all reasonable efforts to obtainprovide the Parent with a list of all items of Personal Property for which the Company or its Subsidiaries maintains a depreciation schedule. (i) The Company shall cause its Subsidiaries to comply with the terms of those certain Registration Rights Agreements dated as of May 13, as soon as reasonably practicable after 1996 relating to the date hereof, such authorizations and approvals registration of the board of trustees of each Mutual Fund (including separate approval of disinterested trustees)PCI Notes, as may be required by the 1940 Act (or an exemptive order with respect thereto), to obtain a new investment advisory agreement between such Mutual Fund and Westfield LP, effective at the Closing. The inclusion of this Section 4.1(c) and any actions taken or not taken pursuant hereto shall not be construed to be an admission or acknowledgment by any Party that the transactions contemplated by this Agreement constitute an “assignment” (within the meanings of either the 1940 Act or the Advisers Act, PBI Notes and the rules thereunder and PNI Notes (as such terms are defined in the interpretations thereofCompany Disclosure Schedule).