OF THK COMMON STOCK WERE ISSUED AND OUTSTANDING, (2) NO
SHARES OF THK PREFERRED STOCK WERE ISSUED OR OUTSTANDING, (3) 2,500,000 SHARES
OF THK COMMON STOCK WERE HELD IN THE TREASURY OF THK, AND (4) 12,144,246 SHARES
OF THK COMMON STOCK WERE DULY RESERVED FOR FUTURE ISSUANCE PURSUANT TO WARRANTS
OR OPTIONS ISSUED OR GRANTED BY THK.
ALL OUTSTANDING SHARES OF THK COMMON STOCK
ARE, AND ALL SHARES OF THK COMMON STOCK TO BE ISSUED IN CONNECTION WITH THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WILL BE, WHEN
ISSUED IN ACCORDANCE WITH THE TERMS HEREOF, DULY AUTHORIZED, VALIDLY ISSUED,
FULLY PAID AND NON-ASSESSABLE, AND NOT SUBJECT TO, OR ISSUED IN VIOLATION OF,
ANY KIND OF PREEMPTIVE, SUBSCRIPTION OR ANY KIND OF SIMILAR RIGHTS.
THERE ARE
NO BONDS, DEBENTURES, NOTES OR OTHER INDEBTEDNESS OF THK HAVING THE RIGHT TO
VOTE (OR CONVERT INTO SECURITIES HAVING THE RIGHT TO VOTE) ON ANY MATTERS ON
WHICH STOCKHOLDERS OF THK MAY VOTE.
EXCEPT AS DESCRIBED ON SCHEDULE 5.2(A)
HEREOF, THERE ARE NO OUTSTANDING SECURITIES, OPTIONS, WARRANTS, CALLS, RIGHTS,
COMMITMENTS, AGREEMENTS, ARRANGEMENTS OR UNDERTAKINGS OF ANY KIND (CONTINGENT OR
OTHERWISE) TO WHICH THK IS A PARTY OR BOUND OBLIGATING THK TO ISSUE, DELIVER OR
SELL, OR CAUSE TO BE ISSUED, DELIVERED OR SOLD, ADDITIONAL SHARES OF CAPITAL
STOCK OR OTHER VOTING SECURITIES OF THK OR OBLIGATING THK TO ISSUE, GRANT,
EXTEND OR ENTER INTO ANY AGREEMENT TO ISSUE, GRANT OR EXTEND ANY SECURITY,
OPTION, WARRANT, CALL, RIGHT, COMMITMENT, AGREEMENT, ARRANGEMENT OR
UNDERTAKING.
EXCEPT AS SET FORTH ON SCHEDULE 5.2(B), NEITHER THK NOR LITMUS
ACQUISITION SUB IS SUBJECT TO ANY OBLIGATION OR REQUIREMENT TO PROVIDE FUNDS
FOR, OR TO MAKE ANY INVESTMENT (IN THE FORM OF A LOAN OR CAPITAL CONTRIBUTION)
TO, OR IN, ANY PERSON.
ALL OF THE ISSUED AND OUTSTANDING SHARES OF THK COMMON
STOCK WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.
5.3
AUTHORIZATION; ENFORCEABILITY.
EACH OF THK AND LITMUS ACQUISITION
SUB HAS THE CORPORATE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THEIR
RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER DOCUMENTS TO WHICH IT
IS OR THEY ARE A PARTY.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE OTHER DOCUMENTS TO WHICH IT IS OR THEY ARE A PARTY AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN HAVE BEEN DULY
AUTHORIZED AND APPROVED BY THE BOARD OF DIRECTORS OF THK AND OF LITMUS
ACQUISITION SUB, AND NO OTHER ACTION BY EITHER ENTITY OR ITS EQUITY HOLDERS IS
NECESSARY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE
OTHER DOCUMENTS.
THIS AGREEMENT AND EACH OF THE OTHER DOCUMENTS TO BE EXECUTED
AND DELIVERED BY EACH OF THK AND LITMUS ACQUISITION SUB HAVE BEEN DULY EXECUTED
AND DELIVERED BY, AND CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATIONS OF,
EACH OF THEM, ENFORCEABLE AGAINST EACH OF THEM, IN ACCORDANCE WITH THEIR TERMS,
EXCEPT AS ENFORCEMENT MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER SIMILAR LAWS RELATING TO OR AFFECTING CREDITOR RIGHTS