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
1
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
