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MTS SYSTEMS CORP | MTS Systems (Shanghai) Co, Ltd | Shenzhen SANS Material Testing Co, Ltd, Shenzhen SANS Measurement Technique Co, Ltd, Shanghai SANS Testing Machine Co, Ltd. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 2.2
Mutual Waiver Agreement
This Mutual Waiver Agreement (the “Agreement”) is entered into by Shenzhen SANS Material Testing Co., Ltd., Shenzhen SANS Measurement Technique Co., Ltd., Shanghai SANS Testing Machine Co., Ltd., collectively as one party, and MTS Systems (Shanghai) Co., Ltd. as the other party on July 31, 2008 and shall be effective on the same date (the “Effective Date”).
WHEREAS , Shenzhen SANS Material Testing Co., Ltd., Shenzhen SANS Measurement Technique Co., Ltd., Shanghai SANS Testing Machine Co., Ltd. (collectively, the “SANS Companies” or the “Sellers”), Huang Zhifang, Lei Qing’an, Zhao Heping, An Jianping, Shang Zhixin (collectively, the “Owners”) and MTS Systems (Shanghai) Co., Ltd. (the “Purchaser”) entered into that certain Master Asset Purchase Agreement (the “APA”) dated April 28, 2008 for the acquisition of certain assets of the Sellers; and
WHEREAS , according to the APA, the Closing of the transactions is scheduled to take place on July 31, 2008 (the “Closing” or “Closing Date”) whereby relevant closing conditions will have to be satisfied by both the Sellers, the Owners, and the Purchaser; and
WHEREAS , pursuant to Section 13.11(a) of the APA, which provides that at any time prior to July 31, 2008 either the Sellers or the Purchaser may extend the time for or waive compliance with the performance of any obligations or other act of the other Party.
NOW THEREFORE , as of the Effective Date set forth above and subject to the conditions set forth below, the Sellers and the Purchaser hereby agree to the following terms of mutual extension of time and/or waiver:
1. Terms defined in the APA and used in this Agreement shall have the meaning as set forth in the APA.
2. The Parties hereby extend the time for and waive compliance against the other with regard to each other’s respective rights and responsibilities concerning the Closing and Closing Date. This mutual extension of time and waiver shall be reflected in a completion date of closing (the “Completion of Closing” or “Completion Date of Closing”) which shall mean “10:00 a.m. on Monday after Saturday closest to the end of calendar month in which the Acquired Assets, as required, have been duly transferred to the Purchaser or any of its Affiliates through the relevant government entity registration and through 90% of third-party consents; provided, however, that in no event shall the Completion Date of Closing be later than December 31, 2008. ” To avoid confusion and to reflect the necessary priority of this Agreement, unless otherwise agreed herein, references to the Closing and Closing Date in the APA shall be understood to mean the “Completion of Closing” and the “Completion Date of Closing” respectively. On July 31, 2008, when the Purchaser makes the payment of 30% of the Purchase Price to the Sellers, and the Sellers deliver to the Purchaser certain parts of the Acquired Assets as agreed, the Parties thereby affirm the validity of the APA.
3. The Parties hereby waive compliance against the other with regard to the mutual requirement, set forth in Section 3.1(a) of the APA, that the Closing shall take place at the
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MWE China Law Offices in Shanghai, PRC. This mutual waiver shall be reflected in the location for the Completion of Closing agreed to be the offices of Shenzhen SANS Material Testing Co., Ltd., in Shenzhen, PRC.
4. The Parties hereby waive the Sellers’ completion of the obligations under Section 2.1 of the APA at Closing. For any Acquired Assets where the title transfer takes place with due registration with the governmental authority, including without limitation to certain intellectual property rights, real estate and automobiles, the Sellers’ obligations are extended till such transfer is done. For other Acquired Assets where the title transfer takes place with no necessity for governmental registration, the Sellers will complete the transfer on September 30, 2008.
5. With regard to Section 2.3 of the APA, Payment of Purchase Price:
a. Regarding Section 2.3(a)(i) of the APA, no extension of time or waiver is granted by the Sellers to the Purchaser. Therefore, the Purchaser shall pay to Sellers thirty percent (30%) of the Purchase Price, in the amount of twelve million five hundred forty thousand U.S. Dollars ($12,540,000) as of July 31, 2008.
b. Regarding Section 2.3(a)(ii) of the APA, the Sellers hereby extend the time for and waive compliance against the Purchaser with respect to its obligation to pay fifteen percent (15%) of the Purchase Price ($6,270,000) to an escrow agent on July 31, 2008. The Parties agree that the Purchaser will pay said monies into the escrow account at JPMorgan as of August 31, 2008. The escrow period will start from August 31, 2008 till July 31, 2010. The Parties will split the interest pro rata to how the principal is distributed till the completion of the escrow period. The Parties agree to share the currency risk in RMB price difference for the escrow amount for the period between March 31, 2008 to July 31, 2008.
c. Regarding Section 2.3(a)(iii) of the APA, the Sellers hereby extend the time for and waive compliance against the Purchaser with respect to its obligation to pay fifty percent (50%) of the Purchase Price ($20,900,000) within three months after July 31, 2008. The Parties agree that the Purchaser will pay said monies to the Sellers as of the Completion Date of Closing.
d. Regarding Section 2.3(c) of the APA, no extension of time or waiver is granted between the Parties. Therefore, the Parties will equally share the RMB price difference due to exchange rate changes between March 31, 2008 and July 31, 2008. T
