EXECUTED AND DELIVERED BY, AND CONSTITUTE THE
LEGAL, VALID AND BINDING OBLIGATIONS OF, LITMUS AND THE SHAREHOLDERS,
RESPECTIVELY, ARE ENFORCEABLE AGAINST LITMUS AND THE SHAREHOLDERS IN ACCORDANCE
WITH THEIR TERMS, EXCEPT AS ENFORCEMENT MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY
REORGANIZATION, MORATORIUM AND SIMILAR LAWS RELATING TO OR AFFECTING CREDITOR
RIGHTS GENERALLY OR BY GENERAL EQUITY PRINCIPLES (REGARDLESS OF WHETHER
ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR AT LAW).
4.5
NO VIOLATION OR CONFLICT.
NONE OF (A) THE EXECUTION AND DELIVERY
BY LITMUS AND THE SHAREHOLDERS OF THIS AGREEMENT AND THE OTHER DOCUMENTS TO BE
EXECUTED AND DELIVERED BY LITMUS OR THE SHAREHOLDERS, (B) THE CONSUMMATION BY
LITMUS AND THE SHAREHOLDERS OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AND THE OTHER DOCUMENTS OR (C) THE PERFORMANCE OF THIS AGREEMENT AND THE OTHER
DOCUMENTS REQUIRED BY THIS AGREEMENT TO BE EXECUTED AND DELIVERED BY LITMUS OR
THE SHAREHOLDERS AT THE CLOSING WILL (1) CONFLICT WITH OR VIOLATE THE ARTICLES
OF INCORPORATION OR THE BYLAWS OR OTHER CONSTITUENT DOCUMENTS OF LITMUS OR ANY
OF ITS SUBSIDIARIES, (2) TO THE KNOWLEDGE OF LITMUS OR THE SHAREHOLDERS,
CONFLICT WITH OR VIOLATE ANY LAW, ORDER OR PERMIT APPLICABLE TO LITMUS OR ANY OF
ITS SUBSIDIARIES OR THE SHAREHOLDERS, OR BY WHICH THE PROPERTIES OF LITMUS AND
ITS SUBSIDIARIES OR THE LITMUS COMMON STOCK ARE BOUND OR AFFECTED, OR (3) RESULT
IN ANY BREACH OR VIOLATION OF, OR CONSTITUTE A DEFAULT (OR AN EVENT THAT WITH
NOTICE OR LAPSE OF TIME OR BOTH WOULD BECOME A DEFAULT) UNDER, OR IMPAIR THE
RIGHTS OF LITMUS OR ITS SUBSIDIARIES OR ALTER THE RIGHTS OR OBLIGATIONS OF ANY
THIRD PARTY UNDER, OR GIVE TO OTHERS ANY RIGHTS OF TERMINATION, AMENDMENT,
ACCELERATION OR CANCELLATION OF, OR RESULT IN THE CREATION OF ANY LIEN ON ANY OF
THE PROPERTIES OR ASSETS OF LITMUS OR ANY OF ITS SUBSIDIARIES PURSUANT TO, ANY
CONTRACT, PERMIT OR OTHER INSTRUMENT OR OBLIGATION TO WHICH LITMUS IS A PARTY OR
BY WHICH LITMUS OR ANY OF ITS SUBSIDIARIES OR THEIR RESPECTIVE PROPERTIES ARE
BOUND OR AFFECTED EXCEPT, (X) IN THE CASE OF CLAUSE (2) OR (3) ABOVE, FOR ANY
CONFLICT, BREACH, VIOLATION, DEFAULT OR OTHER OCCURRENCE THAT WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT ON LITMUS AND
ITS SUBSIDIARIES TAKEN AS A WHOLE, AND (Y) IN THE CASE OF CLAUSE (2) OR (3)
ABOVE, FOR ANY PROVISION OF ANY CONTRACT OR PERMIT WHICH MAY RESTRICT THE
ASSIGNMENT OR TRANSFER OF THE RIGHTS OR OBLIGATIONS OF LITMUS OR ITS
SUBSIDIARIES THEREUNDER, WHICH CONTRACTS AND PERMITS HAVE BEEN MADE AVAILABLE TO
THK AND LITMUS ACQUISITION SUB FOR REVIEW.
15
4.6
GOVERNMENTAL CONSENTS AND APPROVALS.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE OTHER DOCUMENTS BY LITMUS AND THE
SHAREHOLDERS DO NOT AND WILL NOT REQUIRE ANY CONSENT, APPROVAL, AUTHORIZATION,
PERMIT OR OTHER ORDER OF, ACTION BY, FILING WITH OR NOTIFICATION TO, ANY
GOVERNMENTAL AUTHORITY EXCEPT FOR THE FILINGS CONTEMPLATED BY ARTICLE II.
4.7
CAPITAL STRUCTURE.
(a)
The Shareholders and