THEIR OBLIGATIONS RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY.
2.9
TAX-DEFERRED REORGANIZATION.
SUBJECT TO SECTION 10.6 HEREOF, THE
PARTIES INTEND TO ADOPT THIS AGREEMENT AS A TAX-DEFERRED PLAN OF REORGANIZATION
AND AGREE TO TREAT THE MERGER AND THE FINAL MERGER, CONSIDERED TOGETHER AS A
SINGLE INTEGRATED TRANSACTION, AS A REORGANIZATION IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 368(A)(1)(A) OF THE CODE FOR U.S. TAX PURPOSES.
AFTER THE
MERGER, THK, ILEAD ACQUISITION SUB AND THK LLC SHALL, AND SHALL CAUSE ILEAD TO:
(A) REPORT ON THEIR RESPECTIVE TAX RETURNS AND TAX FILINGS THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AS A TAX-FREE REORGANIZATION (EXCEPT FOR CASH
PAID) UNDER SECTION 368(A)(1)(A) OF THE CODE; (B) KEEP THEIR RECORDS, AND FILE
IN CONNECTION WITH THEIR FEDERAL AND STATE INCOME TAX RETURNS, ALL SUCH
INFORMATION AS MAY BE REQUIRED BY SECTION 1.368-3 OF THE TREASURY REGULATIONS
(AND CORRESPONDING STATE RULES AND REGULATIONS) WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT; (C) REFRAIN FROM TAKING ANY ACTION OR TAX
REPORTING POSITION WHICH WOULD BE INCONSISTENT WITH SUCH QUALIFICATION OF THE
TRANSACTIONS CONTEMPLATED HEREUNDER AS A TAX-FREE REORGANIZATION (EXCEPT FOR
CASH PAID) UNDER SECTION 368(A)(1)(A) OF THE CODE UNLESS OTHERWISE REQUIRED BY A
"DETERMINATION" (AS DEFINED IN SECTION 1313(A)(1) OF THE CODE) OR BY APPLICABLE
STATE OR LOCAL LAW (AND THEN ONLY TO THE EXTENT REQUIRED BY SUCH APPLICABLE
STATE OR LOCAL TAX LAW); AND (D) COMPLY WITH ALL THE REQUIREMENTS OF SECTION
368(A)(1)(A) OF THE CODE AND THE ADMINISTRATIVE PRONOUNCEMENTS THEREUNDER
APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE III
RESTRICTIONS ON TRANSFER REGISTRATION
3.1
RESTRICTIONS ON TRANSFER.
ALL CERTIFICATES REPRESENTING THK
COMMON STOCK ISSUED PURSUANT TO THIS AGREEMENT SHALL BEAR A LEGEND STATING THAT
THE THK COMMON STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND MAY
NOT BE TRANSFERRED OR SOLD WITHOUT SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
3.2
REGISTRATION.
AT THE CLOSING, THK AND THE SHAREHOLDERS SHALL
ENTER INTO THE REGISTRATION RIGHTS AGREEMENT.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS AND ILEAD
In order to induce THK, iLead Acquisition Sub and THK LLC to enter into this
Agreement and to consummate the transactions contemplated hereby, the
Shareholders and iLead hereby jointly and severally represent and warrant to
each of THK, iLead Acquisition Sub and THK LLC, as of the date of this
Agreement, as follows, it be understood and agreed that, unless the context
requires otherwise, all references to iLead in this Article IV shall be deemed
to refer to and include iLead and its Subsidiary on a consolidated basis:
4.1
ORGANIZATION AND QUALIFICATION.
ILEAD IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
UTAH, WITH FULL CORPORATE POWER AND
14
AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND TO CONDUCT ITS BUSINESS
AS NOW CONDUCTED EXCEPT WHERE FAILURE TO BE SO ORGANIZED, EXISTING AND IN GOOD
STANDING WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON
ILEAD, AND IS DULY LICENSED OR