TO ISSUE THE WARRANTS AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION OF THE WARRANTS (THE "WARRANT SHARES"), AND TO
(IV) CARRY OUT THE PROVISIONS OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS AND
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED.
IT AND EACH OF ITS
SUBSIDIARIES IS DULY QUALIFIED AND IS AUTHORIZED TO DO BUSINESS AND IS IN GOOD
STANDING AS A FOREIGN CORPORATION, PARTNERSHIP OR LIMITED LIABILITY COMPANY, AS
THE CASE MAY BE, IN ALL JURISDICTIONS IN WHICH THE NATURE OR LOCATION OF ITS
ACTIVITIES AND OF ITS PROPERTIES (BOTH OWNED AND LEASED) MAKES SUCH
QUALIFICATION NECESSARY, EXCEPT FOR THOSE JURISDICTIONS IN WHICH THE FAILURE TO
DO SO HAS NOT HAD, OR COULD NOT REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR
IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
(B)
SUBSIDIARIES.
EACH OF ITS DIRECT AND
INDIRECT SUBSIDIARIES AND FOREIGN SUBSIDIARIES, THE DIRECT OWNER OF EACH SUCH
SUBSIDIARY AND FOREIGN SUBSIDIARIES AND ITS PERCENTAGE OWNERSHIP THEREOF, IS SET
FORTH ON SCHEDULE 12(B).
(C)
CAPITALIZATION; VOTING RIGHTS.
(I)
THE AUTHORIZED CAPITAL STOCK OF THE
PARENT, AS OF THE DATE HEREOF CONSISTS OF 110,000,000 SHARES, OF WHICH
100,000,000 ARE SHARES OF COMMON STOCK, PAR VALUE $0.001 PER SHARE, 43,712,726
SHARES OF WHICH ARE ISSUED AND OUTSTANDING, AND 10,000,000 ARE SHARES OF
PREFERRED STOCK, PAR VALUE $0.001 PER SHARE OF WHICH NONE ARE ISSUED AND
OUTSTANDING.
THE AUTHORIZED, ISSUED AND OUTSTANDING CAPITAL STOCK OF EACH
SUBSIDIARY AND FOREIGN SUBSIDIARY OF EACH COMPANY IS SET FORTH ON
SCHEDULE 12(C).
(II)
EXCEPT AS DISCLOSED ON SCHEDULE 12(C),
OTHER THAN:
(I) THE SHARES RESERVED FOR ISSUANCE UNDER THE PARENT'S STOCK
OPTION PLANS; AND (II) SHARES WHICH MAY BE ISSUED PURSUANT TO THIS AGREEMENT AND
THE ANCILLARY AGREEMENTS, AND (III) SHARES WHICH MAY BE ISSUED IN CONNECTION
WITH THE TRANSACTION IDENTIFIED IN THE "ASIA FACILITY TRANSACTION" IN
SCHEDULE 12(C) AND SUBJECT TO THE EXPRESS TERMS IN RESPECT THEREOF AS SET FORTH
ON SCHEDULE 12(C), THERE ARE NO OUTSTANDING OPTIONS, WARRANTS, RIGHTS (INCLUDING
CONVERSION OR PREEMPTIVE RIGHTS AND RIGHTS OF FIRST REFUSAL), PROXY OR
STOCKHOLDER AGREEMENTS, OR ARRANGEMENTS OR AGREEMENTS OF ANY KIND FOR THE
PURCHASE OR ACQUISITION FROM THE PARENT OF ANY OF ITS SECURITIES.
EXCEPT AS
DISCLOSED ON SCHEDULE 12(C), NEITHER THE OFFER OR ISSUANCE OF ANY OF THE NOTES
OR THE WARRANTS, OR THE ISSUANCE OF ANY OF THE NOTE SHARES OR THE WARRANT
SHARES, NOR THE CONSUMMATION OF ANY TRANSACTION CONTEMPLATED HEREBY WILL RESULT
IN A CHANGE IN THE PRICE OR NUMBER OF ANY SECURITIES OF THE PARENT
13
OUTSTANDING, UNDER ANTI-DILUTION OR OTHER SIMILAR PROVISIONS CONTAINED IN OR
AFFECTING ANY SUCH SECURITIES.
(III)
ALL ISSUED AND OUTSTANDING SHARES OF THE
PARENT'S COMMON STOCK:
(I) HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE
FULLY PAID AND NONASSESSABLE; AND (II) WERE ISSUED IN COMPLIANCE WITH ALL
APPLICABLE STATE AND FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES.
(IV)
THE RIGHTS, PREFERENCES, PRIVILEGES AND
RESTRICTIONS OF THE SHARES OF THE COMMON STOCK ARE AS STATED IN THE PARENT'S
CERTIFICATE OF INCORPORATION (THE "CHARTER").