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EXHIBIT 2.4
THIRD AMENDMENT TO STOCK PURCHASE AGREEMENT
THIRD AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment"), dated
August 29, 1997, by and among DS Group Limited, a corporation formed under the
laws of England and Wales ("Buyer"), Thermadyne Holdings Corporation, a
Delaware corporation ("Holdings"), and Xxxxxx Xxxxxxxx Holdings Corporation, a
Delaware corporation formerly known as MAG Acquisition Corp. and Xxxxxx
Xxxxxxxx Corporation (the "Company").
RECITALS:
WHEREAS, Buyer, Holdings and the Company are parties to that certain
Stock Purchase Agreement dated July 11, 1997, as amended by that certain First
Amendment to Stock Purchase Agreement dated August 1, 1997 and that certain
Second Amendment to Stock Purchase Agreement dated August 15, 1997 (as amended,
the "Stock Purchase Agreement") pursuant to which Buyer will acquire all of the
issued and outstanding capital stock of the Company; and
WHEREAS, Buyer, Holdings and the Company desire to amend certain
provisions of the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENT OF STOCK PURCHASE AGREEMENT
Section 1.1 OFL Account. Article III of the Stock Purchase
Agreement is amended by adding thereto the following Section 3.25:
SECTION 3.25 OFL Account. The aggregate amount of
the "overall foreign loss," as defined in Section 904(f)(2) of
the Code, which is allocable pursuant to Treasury Regulation
Section 1.1502-9 to the Company and its Subsidiaries as of the
close of the taxable period ending on the Closing Date shall
not be greater than $26,000,000.
Section 1.2 Survival of Representations, Warranties and
Covenants. Clause (a) of Section 8.1 of the Stock Purchase Agreement is hereby
amended it its entirety to read as follows:
(a) Except as to the representations and
warranties contained in Section 3.23, which shall survive the
Closing until the expiration of four years from the
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Closing Date, the representations and warranties contained in
Section 3.25, which shall survive the Closing until December
31, 2004, and the representations and warranties contained in
Section 3.16, which shall expire on the Closing Date, the
representations and warranties of Holdings contained in this
Agreement shall survive the Closing until the expiration of 20
months from the Closing Date. Any claim for indemnification
with respect to any of such matters shall be asserted by
notice given as herein provided relating thereto within such
specified period of survival. Any claim for Indemnifiable
Losses asserted within such period of survival as herein
provided will be timely made for purposes hereof.
Section 1.3 Indemnification. Clause (a)(i) of Section
8.3 of the Stock Purchase Agreement is hereby amended in its entirety to read
as follows:
(i) any and all Indemnifiable Losses to the
extent relating to, resulting from or arising out of any
breach of representation or warranty of Holdings or the
Company under the terms of this Agreement (other than the
representations and warranties of Holdings in Sections 3.4,
3.16 and 3.23 and any other representations or warranties
relating to Environmental Laws and Hazardous Materials);
provided that Indemnifiable Losses relating to, resulting from
or arising out of any breach of representation or warranty of
Holdings contained in Section 3.25 shall be limited to
additional Taxes owed by Buyer, the Company and its
Subsidiaries for taxable periods ended on or before December
31, 2004 that relate to, result from or arise out of such
breach;
ARTICLE II
MISCELLANEOUS
Section 2.1 Defined Terms. All capitalized terms used and not
defined herein shall have the meanings ascribed to such terms in the Stock
Purchase Agreement as hereby amended.
Section 2.2 Effect of Amendment. Except as specifically provided
herein, the Stock Purchase Agreement is in all respects ratified and confirmed.
All of the terms, conditions and provisions of the Stock Purchase Agreement as
hereby amended shall be and remain in full force and effect.
Section 2.3 Entire Agreement. This Amendment, together with the
unaltered portions of the Stock Purchase Agreement, embodies the entire
agreement and understanding of the parties hereto and supersedes all prior
agreements and understandings relating to the subject matter hereof.
Section 2.4 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to the conflicts of laws rules thereof.
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Section 2.5 Duplicate Originals. This Amendment may be executed
in as many counterparts as may be necessary or convenient and each of which,
when so executed, shall be deemed to be an original, but all such counterparts
shall constitute but one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
DS GROUP LIMITED
By:/s/ XXX X. XXXXXX
Name: Xxx X. Xxxxxx
Title: Director
THERMADYNE HOLDINGS CORPORATION
By:/s/ XXXXXXXXX X. XXXXXXXXX
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Vice President & General Counsel
XXXXXX XXXXXXXX HOLDINGS CORPORATION
By:/s/ XXXXXXXXX X. XXXXXXXXX
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Vice President & General Counsel
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