AVAILABLE
EXEMPTION FROM REGISTRATION.
4.10
GOVERNMENTAL CONSENTS.
OTHER THAN THE APPROVALS AS SET FORTH IN
SCHEDULE 4.10 ATTACHED HERETO (THE "PRC APPROVALS"), NO CONSENT, APPROVAL, ORDER
OR AUTHORIZATION OF, OR REGISTRATION, DECLARATION OR FILING WITH ANY
GOVERNMENTAL ENTITY IS REQUIRED TO BE OBTAINED OR MADE BY THE PURCHASER IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
4.11
SUFFICIENT FUNDS.
AS OF THE DATE HEREOF, THE PURCHASER HAS, AND
WILL HAVE AT ALL TIMES UNTIL THE CLOSING, SUFFICIENT ACCESSIBLE FUNDS TO
PURCHASE ITS PURCHASE SHARES UPON THE TERMS CONTEMPLATED BY THIS AGREEMENT AND
TO PAY ALL FEES AND EXPENSES ASSOCIATED THEREWITH.
4.12
NO OTHER REPRESENTATIONS AND WARRANTIES.
EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III, THE PURCHASER
ACKNOWLEDGES AND AGREES THAT THE COMPANY MAKES NO OTHER EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY, ITS BUSINESS OR THE
TRANSACTION CONTEMPLATED HEREBY.
5.
Conditions Precedent to Closing.
5.1
CONDITIONS TO THE OBLIGATION OF THE PURCHASER TO CONSUMMATE THE
CLOSING.
THE OBLIGATION OF THE PURCHASER TO CONSUMMATE THE CLOSING AND TO
PURCHASE AND PAY FOR THE PURCHASE SHARES BEING PURCHASED BY IT PURSUANT TO THIS
AGREEMENT IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT:
(A)
REPRESENTATIONS AND WARRANTIES; COVENANTS.
(I)
EACH OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY IN SECTION 3
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS (EXCEPT FOR THOSE
REPRESENTATIONS AND
17
WARRANTIES THAT ARE QUALIFIED BY MATERIALITY OR MATERIAL ADVERSE EFFECT, WHICH
SHALL BE TRUE AND CORRECT TO SUCH EXTENT) AS OF THE DATE OF THIS AGREEMENT AND
AS OF THE DATE OF THE CLOSING AS THOUGH MADE AT THAT TIME (EXCEPT FOR
REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE, WHICH SHALL BE
TRUE AND CORRECT AS OF SUCH SPECIFIED DATE).
(II)
THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THIS
AGREEMENT PRIOR TO THE DATE OF CLOSING.
(B)
QUALIFICATIONS.
ALL AUTHORIZATIONS,
APPROVALS OR PERMITS, IF ANY, OF ANY GOVERNMENTAL ENTITY, INCLUDING, BUT NOT
LIMITED TO, THE PRC APPROVALS, THAT ARE REQUIRED IN CONNECTION WITH THE LAWFUL
ISSUANCE, SALE AND PURCHASE OF THE PURCHASE SHARES, AND THE PURCHASE AND THE
PROCUREMENT OF FOREIGN EXCHANGE FOR PAYMENT OF THE PURCHASE PRICE, PURSUANT TO
THIS AGREEMENT SHALL HAVE BEEN DULY OBTAINED AND EFFECTIVE AS OF THE CLOSING.
(C)
STOCKHOLDERS RIGHTS AGREEMENT.
THE
STOCKHOLDERS RIGHTS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
(D)
BOARD COMPOSITION.
EFFECTIVE AS OF THE
CLOSING, THE BOARD SHALL INCLUDE (BUT NOT BE LIMITED TO) THE FOLLOWING
INDIVIDUALS (UNLESS ANY SUCH INDIVIDUAL IS UNABLE OR UNWILLING TO SERVE ON THE
BOARD):
PETER BLACKMORE, BAICHUAN DU, XIAOPING LI, HONG LIANG LU, BRUCE J.
RYAN, THOMAS J. TOY AND WILLIAM WONG.
(E)
CHIEF EXECUTIVE OFFICER.
THE BOARD SHALL
HAVE APPROVED THE APPOINTMENT OF JACK LU AS CHIEF EXECUTIVE OFFICER OF THE
COMPANY PURSUANT TO THE TERMS OF THE OFFER LETTER BETWEEN MR. LU AND THE
COMPANY, DATED