SHALL TAKE OR
OMIT TO TAKE ANY ACTION, IF THE ACT OR FAILURE TO ACT MIGHT INTERFERE WITH THE
TREATMENT OF THE MERGER AND THE FINAL MERGER, CONSIDERED TOGETHER AS A SINGLE
INTEGRATED TRANSACTION, AS A TAX-DEFERRED REORGANIZATION UNDER SECTION 368 OF
THE CODE.
6.6
POST CLOSING BONUS POOL.
IN THE EVENT THE SHAREHOLDERS ARE
ENTITLED TO ANY EARNOUT PAYMENTS PURSUANT TO ARTICLE VIII, THK SHALL CAUSE
ADDITIONAL CAPITAL TO BE CONTRIBUTED TO THK LLC TO CREATE A BONUS POOL (THE
"BONUS POOL").
THE BONUS POOL SHALL BE USED TO PAY BONUSES TO THE PRE-MERGER
EMPLOYEES OF ILEAD IDENTIFIED IN SCHEDULE 6.6 (THE "PRE-MERGER EMPLOYEES").
THE
AMOUNT OF ADDITIONAL CAPITAL TO BE CONTRIBUTED BY THK TO THE BONUS POOL SHALL BE
AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE EARNOUT PAYMENT (THE "BONUS POOL
AMOUNT"), BEFORE TAKING INTO ACCOUNT DEDUCTION OF THE BONUS POOL AMOUNT, IT
BEING UNDERSTOOD AND AGREED THAT THE CASH PORTION OF THE EARNOUT PAYMENT PAID TO
THE SHAREHOLDERS SHALL BE DECREASED BY AN AMOUNT EQUAL TO THE BONUS POOL
AMOUNT.
DISTRIBUTION OF THE BONUS POOL AMONG THE PRE-MERGER EMPLOYEES SHALL BE
DETERMINED BY WHITTINGHAM IF AND WHEN THE BONUS POOL PAYMENTS ARE MADE.
THE
OBLIGATIONS OF THK UNDER THIS SECTION SHALL SURVIVE THE CLOSING.
6.7
FINAL MERGER.
AS SOON AS REASONABLY PRACTICABLE FOLLOWING THE
CLOSING, BUT AT LEAST ONE BUSINESS DAY AFTER THE BUSINESS DAY OF THE EFFECTIVE
TIME AND IN NO EVENT LATER THAN THE CLOSE OF BUSINESS ON THE FIFTH BUSINESS DAY
IMMEDIATELY FOLLOWING THE BUSINESS DAY OF THE EFFECTIVE TIME, ILEAD SURVIVING
COMPANY SHALL MERGE WITH AND INTO THK LLC.
FROM AND AFTER THE EFFECTIVENESS OF
THE FINAL MERGER, THE SEPARATE CORPORATE EXISTENCE OF ILEAD SURVIVING COMPANY
SHALL CEASE AND THK LLC SHALL CONTINUE AS THE SURVIVING ENTITY IN THE FINAL
MERGER.
SUBJECT TO SECTION 10.6, THK AND THK LLC SHALL TAKE ALL SUCH STEPS AND
ACTIONS AS SHALL BE
35
REASONABLY REQUIRED TO CAUSE ILEAD SURVIVING COMPANY AND THK LLC TO CONSUMMATE
THE FINAL MERGER AS SET FORTH IN THIS SECTION 6.7.
ARTICLE VII
EMPLOYMENT MATTERS
7.1
CURRENT EMPLOYEES.
THE AGGREGATE ANNUAL BASE SALARY OF EACH
PERSON EMPLOYED BY THK LLC SHALL INITIALLY BE AS SET FORTH IN THE EMPLOYEE
SALARIES LETTER.
SUBJECT TO SECTION 7.2, THK LLC SHALL ESTABLISH A BONUS AND
COMMISSION PLAN THAT WILL ALLOW EACH NON-MANAGEMENT EMPLOYEE THE OPPORTUNITY TO
EARN THE SAME BONUS AND COMMISSION AS COULD HAVE BEEN EARNED DURING THE CALENDAR
YEAR IN WHICH THE CLOSING DATE OCCURS PURSUANT TO ILEAD'S BONUS AND COMMISSION
PLANS.
UNLESS OTHERWISE DETERMINED BY WHITTINGHAM BUT SUBJECT TO SECTION 7.2,
EACH NON-MANAGEMENT EMPLOYEE WILL RECEIVE BASE COMPENSATION NO LESS THAN THE
BASE COMPENSATION (OR IN THE CASE OF BONUS OR COMMISSIONED EMPLOYEES, THE
OPPORTUNITY TO EARN NOT LESS THAN THE BONUS OR COMMISSION STRUCTURE) PROVIDED TO
SUCH NON-MANAGEMENT EMPLOYEE IS EMPLOYED BY ILEAD IMMEDIATELY PRIOR TO THE
CLOSING DATE AND PROVIDED FURTHER THAT NOTHING CONTAINED HEREIN SHALL BE DEEMED
TO CONSTITUTE AN EMPLOYMENT AGREEMENT OR ENTITLE ANY PERSON