EXHIBIT 2.4
THIRD AMENDMENT TO
STOCK PURCHASE AGREEMENT
This AMENDMENT (this "Third Amendment") to the Stock Purchase Agreement (the
"Agreement"), dated as of July 10, 2004, by and among TA Leasing Holding Co.,
Inc., a. Delaware corporation ("Seller"), Transamerica Corporation, in its
capacity as guarantor pursuant to Section 5.12 of the Agreement, and ▇▇▇▇▇▇ &
Company Limited, an English-registered limited company ("Purchasers"), as
amended by the First Amendment, dated as of August 10, 2004, and the Second
Amendment, dated as of September 30, 2004, is made and entered into as of
November 3, 2004, among the parties named above and TAL International Group,
Inc. ("TAL"). Except as otherwise specifically indicated, capitalized terms
shall have the meanings specified in the Agreement.
A. Seller and Purchaser desire to amend the Agreement, as amended, to facilitate
the purchase of the Shares and the Business.
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions. Section 1.1 ("Definitions") of the Agreement is hereby
amended to include, delete or modify the following definitions:
"Assigned Agreements" shall have the meaning set forth in Section 10.02(b).
"Effective Time" means the effective time of the Closing as provided in
Section 2.02(b).
"Interest Amount" means an amount equal to $60,000, multiplied by the
number of calendar days between October 31, 2004 and the Closing Date (excluding
October 31, 2004 and including the Closing Date).
"Post-Closing Claims" mean claims, counterclaims, demands, causes of
action, damages, expenses, suits, proceedings and liabilities of any nature
whatsoever, whether known or unknown, relating to or arising out of (i)
post-Closing Date rights and obligations under the Assigned Agreements or (ii)
performance under the Assigned Agreements after the Closing Date.
"TAL" shall have the meaning set forth in the preamble to the Third
Amendment.
"Tax Amount" means an amount equal to $60,000, multiplied by the number of
calendar days between October 31, 2004 and the Closing Date (excluding October
31, 2004 and including the Closing Date).
"Third Amendment" means the Third Amendment to the Stock Purchase
Agreement, dated as of October 29, 2004, among Seller, Purchaser, Transamerica
Corporation, in its capacity as Guarantor, and TAL.
2. Other Agreement Amendments.
2.1 Section 2.05(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(a) Net Book Value. Within 60 days after the Closing Date, Purchaser
shall cause to be prepared and delivered to Seller a balance sheet for the
Purchased Entities as of October 31, 2004, which shall have been audited at
Purchaser's expense by Purchaser's auditor, together with a statement (the
"Statement") prepared by Purchaser setting forth (i) the Net Book Value of
the Business as of the close of business on October 31, 2004, and (ii) the
amount, if any, of current Taxes payable allocable to Straddle Period
Taxes. After the Closing Date, at Purchaser's reasonable request, Seller
shall assist Purchaser and its representatives with respect to the
preparation of the Statement as may be reasonably requested.
2.2 Section 2.05(c) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(c) Adjustment Payment. The Purchase Price shall be: (A) decreased by
an amount equal to the amount, if any, by which Net Book Value as of
October 31 plus $113,609,000, is less than $1,200,000,000; or (B) increased
by an amount equal to the amount, if any, by which the Net Book Value as of
October 31 plus $113,609,000 is greater than the $1,200,000,000; and (C)
increased by the Interest Amount and the Tax Amount (the Purchase Price as
so increased or decreased being hereinafter called the "Adjusted Purchase
Price"). Within 10 days after the Statement has become final and binding in
accordance with Section 2.05(b), (i) if the Closing Date Payment is greater
than the Adjusted Purchase Price, Seller shall pay to Purchaser an amount
equal to such difference, plus simple interest thereon at the Applicable
Settlement Rate from the Closing Date to the date payment is made in full,
and (ii) if the Closing Date Payment is less than the Adjusted Purchase
Price, Purchaser shall pay to Seller an amount equal to such difference,
plus simple interest thereon at the Applicable Settlement Rate from the
Closing Date to the date payment is made in full (the Closing Date Payment
as so increased or decreased being hereinafter called the "Final Purchase
Price"). Any such payment hereunder shall be made by wire transfer of
immediately available funds to an account designated in writing by
Purchaser or Seller, as the case may be. For purposes of this Section
2.05(c), (x) the "Applicable Settlement Rate" shall be Closing Date LIBOR
plus one percent (1%), and (y) "Closing Date LIBOR" shall be the London
Interbank Offered Rate (LIBOR) as reported on the Closing Date in The Wall
Street Journal for the specified interval of calendar months (expressed as
the 3-month LIBOR rate, 6-month LIBOR rate, 9-month LIBOR rate and so on,
as applicable) that most closely corresponds to the time period between the
Closing Date and the date that payment in full pursuant to this Section
2.05(c) is made.
2
2.3 Section 3.26(a) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(a) Schedule 3.26 lists all insurance policies pursuant to which any
of the Purchased Entities are insured as of the date of this Agreement.
Such policies are in full force and effect and sufficiently insure against
risks and liabilities customary for the Business. Neither Seller nor any
Purchased Entity have received a notice of cancellation or nonrenewal of
any such policy.
2.4 Section 5.03(d) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(d) declare, set aside or pay any dividend (other than cash dividends)
or other distribution payable in stock or property with respect to any
shares of any class or series of its Capital Stock, except as set forth on
Schedule 5.08; provided, however, that after October 31, 2004, the
Purchased Entities shall not (i) declare, set aside or pay any dividend
(including any cash dividend) or make any distribution, except as set forth
on Schedule 5.08, or (ii) repay any outstanding Indebtedness owed by a
Purchased Entity to Seller or any of its Affiliates (other than any
Purchased Entity);
2.5 Section 5.03(g) of the Agreement is hereby deleted in its entirety
and replaced with the following:
(g) (i) incur or assume any long-term or short-term Indebtedness;.
(ii) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
other Person, except in the ordinary course of business and consistent with
past practice; (iii) make any loans, advances or capital contributions to,
or investments in, any other Person, other than finance leases entered into
in the ordinary course of business; or (iv) enter into any commitment or
transaction (including any capital expenditure or purchase, sale or lease
of assets or real estate) involving payments by any of the Purchased
Entities in excess of $500,000; provided, that, notwithstanding the
foregoing, on or before October 31, 2004, the Purchased Entities shall be
permitted to incur, pay or satisfy any inter-company Indebtedness;
2.6 Section 8.01(a) ("Termination") of the Agreement is hereby deleted
in its entirety and replaced with the following:
(a) Notwithstanding anything to the contrary in this Agreement, this
Agreement may be terminated and the Acquisition and the other transactions
contemplated by this Agreement abandoned at any time prior to the Closing:
(i) by mutual written consent of Seller and Purchaser;
(ii) by Seller, if any of the conditions set forth in Section 7.01 or
7.03 shall have become incapable of fulfillment, and shall not have been
waived by Seller;
3
(iii) by Purchaser, if any of the conditions set forth in Section 7.01
or 7.02 shall have become incapable of fulfillment, and shall not have been
waived by Purchaser;
(iv) by Seller or Purchaser, if the Closing does not occur on or prior
to November 12, 2004;
provided, however, that the party seeking termination pursuant to
clause (ii), (iii) or (iv) is not then in material breach of any of its
representations, warranties, covenants or agreements contained in this
Agreement.
2.7 Section 10.02 of the Agreement is hereby deleted in its entirety
and replaced with the following:
Section 10.02 Assignability, Parties in Interest, No Third Party
Beneficiaries; Assignment and Release.
(a) This Agreement and the rights, interests or obligations of the
parties hereunder may not be assigned by any of the parties hereto without
the prior written, consent of the other party hereto; provided, however,
that Purchaser may assign its rights and obligations under this Agreement
to a Financial Institution as collateral in connection with financing or
refinancing the Acquisition and only to a maximum of five (5) Financial
Institutions; provided further, that Purchaser shall not in any event
assign any of its rights and obligations under this Agreement to any Person
to which any Purchased Entity or portion or asset of the Business may be
transferred for the purpose of securitizing such assets nor shall any
purchaser of, or investor in, any securities or interests issued in
connection with any such securitization have any rights under this
Agreement. Notwithstanding anything to the contrary, permissible Financial
Institution assignees shall have no rights against Seller, Guarantor or
their Affiliates unless (i) Purchaser is in default of its obligations
under applicable agreements between Purchaser and such Financial
Institution and (ii) such permissible Financial Institution assignees have
pursued all available remedies against Purchaser. Subject to the foregoing,
this Agreement shall inure to the benefit of and be binding upon Purchaser
and Seller and their respective permitted successors and assigns. Except as
provided above, nothing in this Agreement will confer upon any person or
entity not a party to this Agreement, or the legal representatives of such
person or entity, any rights or remedies of any nature or kind whatsoever
under or by reason of this Agreement.
(b) Subject to the terms and conditions of this Section 10.02 and
effective at the Effective Time, (i) ▇▇▇▇▇▇ & Company Limited hereby
assigns all of its rights, liabilities and obligations under the Agreement,
the First Amendment, the Second Amendment, the Third Amendment and the
Ancillary Agreements (collectively, the "Assigned Agreements") to TAL, (ii)
TAL hereby agrees to be bound by the terms of the Assigned Agreements and
to assume and perform all of ▇▇▇▇▇▇ & Company Limited's rights, liabilities
and obligations under the Assigned Agreements (and hereby agrees to
indemnify ▇▇▇▇▇▇ & Company Limited for any claims made by Seller with
respect to such rights, liabilities and obligations under the Assigned
Agreements) and (iii) Seller hereby consents to the assignment of the
Assigned Agreement as set forth in this Section
4
10.02. The parties hereto further agree that on and after the Effective
Time, all references in the Assigned Agreements to Purchaser shall be
deemed to refer to TAL. For the avoidance of doubt, after the Effective
Time, TAL shall be permitted to assign its rights, liabilities and
obligations under this Agreement only in accordance with the terms of
Section 10.02(a), and notwithstanding anything to the contrary, permissible
Financial Institution assignees of TAL shall have no rights against Seller,
Guarantor or their Affiliates unless (i) TAL is in default of its
obligations under applicable agreements between TAL and such Financial
Institution and (ii) such permissible Financial Institution assignees have
pursued all available remedies against TAL. Except as provided above,
nothing in this Section 10.02(b) shall confer upon any person or entity not
a party to this Agreement, or the legal representatives of such person or
entity, any rights or remedies of any nature or kind whatsoever under or by
reason of this Agreement.
(c) In consideration of the agreements set forth in Section 10.02(b):
(i) Effective at the Effective Time, Seller and Guarantor hereby
fully and forever release and discharge ▇▇▇▇▇▇ & Company Limited from any
and all Post-Closing Claims that either Seller or Guarantor may ever have
had, may now have or may hereafter have against ▇▇▇▇▇▇ & Company Limited;
and
(ii) Effective at the Effective Time, ▇▇▇▇▇▇ & Company Limited
hereby fully and forever releases and discharges Seller, Guarantor and each
of their Affiliates from any and all Post-Closing Claims that ▇▇▇▇▇▇ &
Company Limited may ever have had, may now have or may hereafter have
against any of Seller, Guarantor or any of their Affiliates.
2.8 Section 10.06 of the Agreement is hereby deleted in its
entirety and replaced with the following:
Section 10.06 Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, except as otherwise expressly provided
herein each of the parties hereto shall be responsible for the payment of
its own respective costs and expenses incurred in connection with the
negotiations leading up to and the performance of its respective
obligations pursuant to this Agreement and the Ancillary Agreements
including the fees of any attorneys, accountants, brokers or advisors
employed or retained by or on behalf of such party; provided, however, that
in the event the Aegon Approval has not been obtained on or before November
12, 2004, Seller shall pay TAL $225,000.
3. Construction. All provisions of the Agreement, as amended by the First
Amendment, the Second Amendment and this Third Amendment, shall apply to the
purchase of the Shares and the Business.
4. Ratification of Agreement. Except as modified or otherwise provided by
the terms of this Third Amendment, the Agreement, as amended by the First
Amendment, the Second Amendment and this Third Amendment, is hereby ratified and
confirmed in its entirety, and remains in full force and effect in accordance
with its terms.
5
5. Entire Agreement. This Third Amendment, along with the Agreement,
including the Schedules (and the Introduction thereto) and Exhibits thereto, the
First Amendment, the Second Amendment, any written amendments to the foregoing
satisfying the requirements of Section 10.01 of the Agreement, the
Non-Disclosure Agreement and the Ancillary Agreements, including the schedules,
exhibits and annexes thereto, constitutes the entire agreement of the parties
with respect to the subject matter hereof and thereof and supersedes any
previous agreements and understandings between the parties with respect to such
matters. There are no promises, understandings or representations other than
those set forth in those documents.
6. Counterparts. This Third Amendment may be signed in any number of
counterparts and the signatures delivered by telecopy, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument and delivered in person.
7. Governing Law. This Third Amendment and any disputes arising under or
related thereto (whether for breach of contract, tortious conduct or otherwise)
shall be governed and construed in accordance with the laws of the State of New
York, without reference to its conflicts of law principles.
[Remainder of Page Intentionally Left Blank]
6
IN WITNESS WHEREOF, Seller, Guarantor and Purchaser have caused this Third
Amendment to be duly executed as of the date first above written.
TA LEASING HOLDING CO. INC., SELLER
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇ & COMPANY LIMITED
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: A. ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
TAL INTERNATIONAL GROUP, INC.
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Vice President
TRANSAMERICA CORPORATION,
in its capacity as Guarantor,
pursuant to Section 5.12 of the
Agreement
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
7
