THE COMPANY ACCEPT THE TENDER OR EXCHANGE
OFFER.
FOR PURPOSES OF THIS AGREEMENT, "SUPERIOR OFFER," SHALL MEAN AN ACQUISITION
PROPOSAL BY A THIRD PARTY WITH TERMS THAT THE BOARD HAS IN GOOD FAITH CONCLUDED
(FOLLOWING THE RECEIPT OF ADVICE OF ITS OUTSIDE LEGAL COUNSEL AND ITS FINANCIAL
ADVISER), TAKING INTO ACCOUNT, AMONG OTHER THINGS, ALL LEGAL, FINANCIAL,
REGULATORY AND OTHER ASPECTS OF THE OFFER AND THE PERSON MAKING THE ACQUISITION
PROPOSAL, INCLUDING WITHOUT LIMITATION ANY PROPOSED CONDITIONS TO CONSUMMATION,
TO BE MORE FAVORABLE, FROM A FINANCIAL POINT OF VIEW, TO THE COMPANY'S
STOCKHOLDERS (IN THEIR CAPACITIES AS STOCKHOLDERS) THAN THE TERMS OF THE
TRANSACTION CONTEMPLATED HEREUNDER, IS REASONABLY LIKELY TO BE CONSUMMATED AND
FOR WHICH FINANCING, TO THE EXTENT REQUIRED, IS THEN FULLY COMMITTED OR
REASONABLY DETERMINED TO BE AVAILABLE BY THE BOARD.
(C)
GOVERNMENT CONSENTS. NOTWITHSTANDING THE
GENERALITY OF SECTION 6.2(A) ABOVE, TO THE EXTENT APPLICABLE, THE PURCHASER
COVENANTS TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ALL NECESSARY
GOVERNMENT APPROVALS, INCLUDING WITHOUT LIMITATION, THE PRC APPROVALS, REQUIRED
FOR IT TO COMPLETE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND, AS
PROMPTLY AS PRACTICABLE AFTER THE DATE HEREOF, THE PURCHASER SHALL MAKE ALL
FILINGS, NOTICES, PETITIONS, STATEMENTS, REGISTRATIONS, SUBMISSIONS OF
INFORMATION, APPLICATION OR SUBMISSION OF OTHER DOCUMENTS REQUIRED BY ANY
GOVERNMENTAL ENTITY REQUIRED IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
THE PURCHASER WILL NOTIFY THE COMPANY
PROMPTLY UPON THE RECEIPT OF (I) ANY COMMENTS FROM ANY OFFICIALS OF ANY
GOVERNMENTAL ENTITY IN CONNECTION WITH ANY
20
FILINGS MADE PURSUANT HERETO, AND (II) ANY REQUESTS BY ANY OFFICIALS OF ANY
GOVERNMENTAL ENTITY FOR AMENDMENTS OR SUPPLEMENTS TO, OR ADDITIONAL INFORMATION
IN CONNECTION WITH, ANY FILINGS MADE PURSUANT HERETO.
IN ADDITION,
THE
PURCHASER SHALL USE BEST ENDEAVORS TO FURNISH SUCH INFORMATION, SUPPLY SUCH
DOCUMENTS, GIVE SUCH UNDERTAKINGS AND DO ALL SUCH ACTS AND THINGS MAY BE
REASONABLY REQUIRED BY ANY OTHER GOVERNMENTAL ENTITY IN RELATION TO OR ARISING
OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(D)
CONDUCT OF BUSINESS BY THE COMPANY.
DURING
THE PERIOD FROM THE DATE HEREOF AND CONTINUING UNTIL THE EARLIER OF THE
TERMINATION OF THIS AGREEMENT PURSUANT TO ITS TERMS OR THE CLOSING, THE COMPANY
AND EACH OF ITS SUBSIDIARIES SHALL, EXCEPT AS OTHERWISE EXPRESSLY CONTEMPLATED
BY THIS AGREEMENT, DISCLOSURE SCHEDULE OR REQUIRED TO CONSUMMATE THE TRANSACTION
CONTEMPLATED HEREUNDER, OR TO THE EXTENT THAT THE PURCHASER SHALL OTHERWISE
CONSENT IN WRITING, (I) CARRY ON ITS BUSINESS IN THE USUAL, REGULAR AND ORDINARY
COURSE, IN SUBSTANTIALLY THE SAME MANNER AS HERETOFORE CONDUCTED AND CONSISTENT
WITH THE COMPANY'S PLAN'S
FOR MANAGING ITS BUSINESS AND OTHER OPERATIONS AND IN
MATERIAL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, (II) PAY ITS DEBTS
AND TAXES WHEN DUE, PAY OR PERFORM OTHER MATERIAL OBLIGATIONS WHEN DUE,
(III) MAKE NO MATERIAL CHANGE TO THE COMPENSATION ARRANGEMENT OR AGREEMENT WITH
THE CHIEF EXECUTIVE OFFICER AND OTHER KEY EMPLOYEES OF THE COMPANY, (IV) NOT
SELL, ASSIGN OR TRANSFER ANY MATERIAL COMPANY INTELLECTUAL PROPERTY OTHER THAN
IN THE ORDINARY COURSE OF BUSINESS, (IV) NOT INITIATE