5.9
Material Information.
No representation or
warranty made by THK or RESO Merger Sub in this Agreement contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein no misleading.
ARTICLE VI
CLOSING DELIVERIES/CONDITIONS PRECEDENT
6.1
RESO/Shareholder Deliveries. At the Closing,
RESO and the Shareholder, to the extent applicable, shall take the following
actions:
(A)
RESO SHALL DELIVER TO THK, IN A FORM REASONABLY
SATISFACTORY TO THK, AN AFFIDAVIT OF RESO, ISSUED PURSUANT TO AND IN COMPLIANCE
WITH TREASURY REGULATIONS SECTIONS 1.897-2(H) AND 1.1445-2(C)(3) AND DATED AS OF
THE CLOSING DATE, CERTIFYING THAT AN INTEREST IN RESO IS NOT A U.S. REAL
PROPERTY INTEREST WITHIN THE MEANING OF SECTION 897 OF THE CODE;
(B)
THE SHAREHOLDER SHALL CONVEY, GIVE, GRANT, ASSIGN
AND TRANSFER TO RESO SURVIVING CORPORATION, ANY AND ALL RIGHTS, TITLES AND
INTERESTS OF ANY NATURE WHATSOEVER THAT THE SHAREHOLDER MAY HAVE IN, OR TO, THE
OWNERSHIP OR USE OF ANY AND ALL INTELLECTUAL PROPERTY USED IN OR ASSOCIATED WITH
RESO OR THE BUSINESS AND NOT OTHERWISE TRANSFERRED TO RESO PRIOR TO THE CLOSING;
(C)
THE SHAREHOLDER SHALL CONVEY, GIVE, GRANT, ASSIGN
AND TRANSFER TO RESO SURVIVING CORPORATION, ANY AND ALL RIGHTS, TITLES AND
INTERESTS OF ANY NATURE WHATSOEVER, LEGAL OR BENEFICIAL, ACTIVE OR PASSIVE, THAT
THE SHAREHOLDER MAY HAVE IN, OR TO ANY OTHER PERSON, BUSINESS OR "WEBSITE"
INVOLVING THE SALE OR PROVISION OF INFORMATION, GOODS OR SERVICES OVER THE
INTERNET, IT BEING EXPRESSLY ACKNOWLEDGED AND AGREED BY THE SHAREHOLDER THAT IT
IS THE INTENT OF THE PARTIES AND OF THIS AGREEMENT THAT FOLLOWING THE
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MERGER THE SHAREHOLDER'S ONLY BUSINESSES OF ANY NATURE WHATSOEVER INVOLVING THE
INTERNET, WILL BE HIS INTEREST IN THK AND RESO SURVIVING CORPORATION;
(D)
THE SHAREHOLDER SHALL EXECUTE AND DELIVER THE
EMPLOYMENT AGREEMENT;
(E)
THE SHAREHOLDER SHALL EXECUTE AND DELIVER TO THK
THE REGISTRATION RIGHTS AGREEMENT IN THE FORM SET FORTH IN EXHIBIT C HERETO;
(F)
THE SHAREHOLDER SHALL DELIVER CERTIFICATES
EVIDENCING ALL OF THE RESO COMMON STOCK TO THK;
(G)
RESO SHALL DELIVER TO THK THE AUDITED FINANCIALS AS
OF DECEMBER 31, 2004 AND FOR THE YEAR THEN ENDED, PREPARED IN ACCORDANCE WITH
GAAP, AND ACCOMPANIED BY A SIGNED, UNQUALIFIED OPINION OF BLACKMAN KALLICK;
(H)
RESO SHALL DELIVER TO THK A CERTIFICATE, WITH
SUPPORTING BANK STATEMENTS, STATING THE AMOUNT OF CASH ON DEPOSIT ON THE CLOSING
DATE IN UNRESTRICTED ACCOUNTS MAINTAINED BY RESO;
(I)
RESO SHALL DELIVER ALL CORPORATE MINUTE BOOKS
AND STOCK RECORDS TO THK; AND
(J)
RESO SHALL DELIVER TO THK A COPY OF THE
RESOLUTIONS DULY, VALIDLY AND UNANIMOUSLY ADOPTED BY THE BOARD OF DIRECTORS AND
SHAREHOLDER OF RESO, CERTIFIED BY THE CORPORATE SECRETARY, AUTHORIZING AND
APPROVING THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE
OTHER DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
6.2
THK/RESO Merger Sub Deliveries. At the
Closing, THK and RESO Merger Sub, to the extent applicable shall take the
following action:
(A)
THK SHALL DELIVER TO THE SHAREHOLDER THE AGGREGATE
CASH