Exhibit 2.4
THIRD AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Third Amendment"),
dated as of December 31, 2001, is made by and among SHILOH INDUSTRIES, INC., a
Delaware corporation (the "Parent"), SHILOH AUTOMOTIVE, INC., an Ohio
corporation ("Buyer"), and MTD PRODUCTS INC, an Ohio corporation ("Seller").
RECITALS
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WHEREAS, the Parent, Buyer and Seller entered into a certain Asset Purchase
Agreement, dated as of June 21, 1999 (the "Purchase Agreement") for the sale and
purchase of substantially all of the assets of the unincorporated automotive
division of Seller; and
WHEREAS, the parties amended the Purchase Agreement by a First Amendment to
Asset Purchase Agreement, dated as of August 31, 1999; and
WHEREAS, the closing of the transaction contemplated under the Purchase
Agreement occurred effective as of November 1, 1999; and
WHEREAS, the parties amended the Purchase Agreement by a Second Amendment
to Asset Purchase Agreement dated as of January 22, 2001; and
WHEREAS, pursuant to Section 10.11 of the Purchase Agreement, the parties
hereto desire to further amend said Purchase Agreement as more fully set forth
herein; and
WHEREAS, in connection with the payment of the cash portion of the Earnout
Amount pursuant to the terms and conditions of the Second Amendment to Asset
Purchase Agreement, the parties agreed that Buyer would satisfy its obligations
with respect to the Cash Earnout Amount by executing and delivering to Seller a
Promissory Note ("Promissory Note") in the principal amount of $4,045,392.00;
and
WHEREAS, the parties have determined to have Seller issue certain shares of
preferred stock of Seller in lieu of payment of the Promissory Note.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto, intending to be
legally bound hereby, covenant and agree as follows:
1. Certain Definitions. Unless otherwise defined herein, all capitalized
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terms used herein shall have the meanings given to them in the Purchase
Agreement.
2. Issuance of Preferred Stock. Notwithstanding any provision contained in
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Section 2.8 of the Purchase Agreement or in the Second Amendment to the
contrary, Buyer and Seller agree that with respect to the payment of the
Promissory Note that Buyer shall satisfy its obligations under the
Promissory Note by causing the Parent to issue 42,780 shares of Series A
Preferred Stock of Parent to Seller. The terms and conditions of such
Series A Preferred Stock shall be as set forth in the Certificate of
Designations, a copy of which is attached hereto as Exhibit A and which
shall be filed with the Secretary of State of Delaware. Upon issuance of
the Series A Preferred Stock, Seller will cancel the Promissory Note and
return the original copy of the Promissory Note to Buyer.
3. Effect of Third Amendment. Except as specifically provided herein, this
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Third Amendment does not in any way waive, amend, modify, affect or impair
the terms and conditions of the Purchase Agreement, and all terms and
conditions of the Purchase Agreement are to remain in full force and effect
unless otherwise specifically amended, waived or changed pursuant to this
Third Amendment.
4. Entire Agreement. This Third Amendment constitutes the entire agreement
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among the parties pertaining to the subject matter hereof and supersedes
all prior and contemporaneous agreements, understandings, representations,
or other arrangements, whether express or implied, written or oral, of the
parties in connection therewith except to the extent expressly incorporated
or specifically referred to herein.
5. Counterparts. This Third Amendment may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument.
6. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to be duly executed and delivered as of the date first above written.
SHILOH INDUSTRIES, INC.
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Its: Chief Executive Officer
SHILOH AUTOMOTIVE, INC.
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Its: President
MTD PRODUCTS INC
/s/ Xxxxxx X. Xxxxxx
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By: Xxxxxx X. Xxxxxx
Its: Executive Vice President and
Chief Financial Officer
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