Exhibit 2.4
SECOND AMENDMENT
TO
MUTUAL WAIVER
AGREEMENT
THIS SECOND AMENDMENT TO MUTUAL WAIVER AGREEMENT
( the “ Second Amendment ”) is made as of
September 26, 2008 by and among 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 (China) Co., Ltd. as the other party, and shall be
effective on the same date.
RECITALS
A.
The parties entered into that
certain Mutual Waiver Agreement dated July 31, 2008 (the
“ Waiver Agreement ”), as amended by that
certain Amendment to Mutual Waiver Agreement dated August 29,
2008 (the “ Amendment ”), pursuant to which the
parties agreed to mutual extension of time and/or waiver with
regard to the APA. Unless the context clearly indicates
otherwise, or unless specifically defined otherwise, all defined
terms in this Second Amendment shall have the same meaning as in
the APA, the Waiver Agreement, and/or the Amendment.
B.
The parties now wish to further
amend the Waiver Agreement to further clarify the intent of the
parties and to remove an unnecessary provision.
C.
The parties hereby acknowledge and
agree that MTS Systems (Shanghai) Co., Ltd. has changed its name to
MTS Systems (China) Co., Ltd. with the new business license issued
and therefore MTS Systems (China) Co., Ltd. has the full authority
to execute and bind itself to this Second Amendment on behalf of
itself.
NOW, THEREFORE, in consideration of the
foregoing and the mutual promises herein contained, the parties
agree as follows:
AGREEMENT
1.
Closing.
In Section 2 of the Waiver
Agreement the definitions of “Completion of Closing”
and “Completion Date of Closing” shall be amended to
read September 28, 2008; provided that:
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a.
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the asset value appraisal project referenced in
Section 7.(l) of the Waiver Agreement, that remains
subject to Ernst & Young’s approval and agreement,
is completed no later than September 24, 2008;
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b.
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the Escrow Agreement is amended, in accordance
with Section 4 below, no later than September 26,
2008;
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c.
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the Acquired Assets, as required, have been duly
transferred to the Purchaser or any of its Affiliates through the
relevant government entity registration;
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d.
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Sellers provide thirty percent (30%) of third
party consents, as “third party consents” is defined in
Section 2 of the Amendment (replacing each 90% reference to
30%);
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e.
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Sellers comply with the provisions set forth in
Sections 7.1, 7.2, 7.4, 7.7, 7.8, 7.9, and 7.10 of the APA;
and
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f.
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Purchaser complies with the provisions set forth
in Section 8 of the APA.
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2.
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Huang Zhifang . Purchaser hereby waives compliance exclusively
against Sellers and parties Lei Qing’an, Zhao Heping, An
Jianping, and Shang Zhixing the obligations set forth in Sections
3.2(i) and 3.2(j) of the APA that Huang Zhifang shall
execute the Non-Compete Agreement, the Non-Solicitation Agreement,
and the Transition Services Agreement. Notwithstanding the
foregoing, Purchaser expressly does not waive its rights and
reserves all claims, either present or in the future, against Huang
Zhifang.
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3.
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Location of Closing The location for the Completion of Closing as
maintained in Section 3 of the Waiver Agreement shall be
amended to be at the offices of either Shenzhen SANS Material
Testing Co., Ltd, in Shenzhen, PRC, or Shanghai SANS Testing
Machine Co., Ltd, in Shanghai, PRC, at the mutual agreement of the
parties.
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4.
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Escrow Period. In Section 5.(b.) of the Waiver Agreement
the two references to “August 31, 2008” shall be
amended t
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