Common use of Conditions and Obligations Clause in Contracts

Conditions and Obligations. 3.1 The obligations of GaoKe under this Agreement shall be subject to the conditions that: a) all the terms, covenants and conditions of this Agreement to be complied with and performed by Evatech shall have been fully complied with and performed in all material respects; b) the representations and warranties of Evatech contained herein shall be true and correct as of the Closing Date; c) the Recovery Plan contains substantially the same terms as set out in Exhibit B and can be implemented in accordance with its terms; d) Evatech having completed the Evatech Share Buy Back and none of its assets are subject to any Encumbrances except those stipulated in the Recovery Plan; e) Evatech having received, from both the Court and the administrator appointed by the Court (“Administrator”), (i) the necessary approval for Evatech to be a party to this Agreement; and (ii) the necessary consent for the transfer of the ownership of the Stock to GaoKe; f) Evatech having: (i) entered into an entrustment agreement with Mr. Eiji Ino for the appointment of him to become the Representative Director of Evatech for a term of three (3) years with such entrustment agreement to include provisions in relation to certain technology developed and held by Evatech; (ii) passed a shareholder resolution to approve the terms of the entrustment agreement in clause 3.1(f)(i) above; and (iii) in the event Mr Eiji Ino is required to resign as a Representative Director of Evatech for any reason (including but not limited to his personal bankruptcy), Evatech having passed: (a) a shareholder resolution to re-appoint Mr Eiji Ino as a Director of Evatech; and (b) a board resolution to appoint Mr Eiji Ino as a Representative Director of Evatech. g) Evatech having: (i) entered into an entrustment agreement with ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ to appoint him as Representative Director and Chairman of the Board of Directors and an entrustment agreement with ▇▇. ▇▇▇▇ ▇. Lin to appoint him as Representative Director of Evatech for terms of three (3) years; and (ii) passed a shareholder resolution to appoint ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ and ▇▇. ▇▇▇▇ ▇. Lin as Director of Evatech; and (iii) passed a board resolution to appoint ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ as a Representative Director and Chairman of the Board of Directors and ▇▇. ▇▇▇▇ ▇. Lin as a Representative Director. h) Evatech having procured the resignation of the following members of the Board of Directors of Evatech as of the Closing Date: (i) ▇▇▇▇▇▇▇ ▇▇▇▇; (ii) ▇▇▇▇▇ ▇▇▇▇▇; (iii) Kenichi Ichisaka; (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; (v) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and (vi) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and Evatech having procured each of the above persons to enter into employment agreements with Evatech (in a form satisfactory to GaoKe) under which each such person will be employed as a management level employee of Evatech for a minimum of 3 years from the Closing Date; i) Evatech having procured the amendment of the employment agreements between Evatech and the employees listed in Exhibit C to the effect that such employees undertake not to terminate their employment with Evatech for a minimum of three (3) years following the Closing Date; j) the liabilities, obligations, indebtedness and commitments of Evatech as of the Closing Date are not materially different than the list of liabilities, obligations, indebtedness and commitments disclosed by Evatech to GaoKe as of the date of this Agreement; and k) Evatech having provided to GaoKe: (i) its audited financial statement for the period ending 31 August 2009 and such financial statement is satisfactory to GaoKe in its sole discretion; and (ii) an audited closing financial statement dated no earlier than 2 weeks before the Closing Date that is not materially different to the audited financial statement provided under Clause 3.1(k)(i) above. l) GaoKe having obtained all PRC governmental or regulatory authority approvals and other authorizations to transfer the Total Investment outside the PRC and complete the transaction contemplated by this Agreement, including but not limited to: (i) any approvals required from the NDRC (National Development and Reform Commission); (ii) any required overseas investment approvals from MOFCOM (Ministry of Commerce); and (iii) any required foreign exchange control approvals from SAFE (State Administration of Foreign Exchange). 3.2 The obligations of Evatech under this Agreement are subject to the conditions that: a) all the terms, covenants and conditions of this Agreement to be complied with and performed by GaoKe shall have been fully complied with and performed in all material respects; and b) the representations and warranties of GaoKe contained herein shall be true and correct as of the Closing Date. 3.3 The respective obligations of GaoKe and Evatech hereunder, are subject to the condition that, on the Closing Date no action or proceeding shall be pending or threatened with respect to which an unfavorable judgment, decree or order would: a) prevent or make unlawful the carrying out of this Agreement; b) cause the transaction contemplated by this Agreement to be rescinded; or c) require GaoKe to divest itself of the Stock to be acquired or any assets of Evatech.