Common use of Amendment to Merger Agreement Clause in Contracts

Amendment to Merger Agreement. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions set forth in Section 2(c) of the Signing Escrow Agreement, then in such instance the Company shall be entitled to retain the Initial Earnxxx Xxxey and the Additional Earnxxx Xxxey, together with any interest or income earned thereon, as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions of Section 2(b) of the Signing Escrow Agreement, then in such instance the Purchaser shall be entitled to be refunded a portion of the Additional Earnxxx Xxxey equal to Two Hundred and Fifty Thousand Dollars ($250,000) and the Initial Earnxxx Xxxey together with the remainder of any Additional Earnxxx Money (and any earnings thereon) will be retained by the Company as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty, and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by Section 2(a) of the Signing Escrow Agreement, then in such instance the Company shall promptly after the termination of this Agreement refund the Initial Earnxxx Xxxey to the Purchaser, in cash, together with interest thereon for the number of days it had such Initial Earnxxx Money calculated at a per annum rate equal to the prime rate as announced by the Wall Street Journal at such time and Purchaser shall be entitled to be refunded the Additional Earnxxx Xxxey (and any earnings thereon). If the Merger contemplated hereby is consummated, then the Initial Earnxxx Xxxey (plus any interest or income earned thereon as calculated above less the Aggregate Preferred Redemption Consideration) shall be forwarded by the Company on behalf of Purchaser to the Exchange Agent on the Closing Date as part of the Aggregate Merger Consideration, and the bank acting as escrow agent under the Signing Escrow Agreement shall be instructed by the Company and Purchaser to release all funds in the escrow account under the Signing Escrow Agreement pursuant to the instructions of Purchaser. The parties hereto agree to promptly take all

Amendment to Merger Agreement. If (a) The first sentence of Section 2.9(a) of the Merger contemplated hereby Agreement shall be deleted in its entirety and replaced with the following: At the Closing, Parent and the Surviving Corporation shall transfer to a bank or trust company designated by Parent (the "Exchange Agent"), by wire transfer of immediately available funds, cash in an amount equal to (i) the Merger Consideration, minus (ii) the aggregate amount paid to Securityholders pursuant to Paragraph 2.9(b), minus (iii) the Escrow Amount, minus (iv) the Company Transaction Costs Holdback Amount, minus (v) the Aggregate Rolled Amount (as herein defined). (b) Each Rolling Securityholder acknowledges and agrees that, notwithstanding the provisions of Sections 2.9(a) and 2.9(b) of the Merger Agreement: (i) such Rolling Securityholder will not be eligible to receive a portion of the Merger Consideration in cash from Parent and/or the Exchange Agent in the manner set forth in Sections 2.9(a) and 2.9(b) of the Merger Agreement in exchange for the Common Stock set forth beside such Rolling Securityholder's name on EXHIBIT A hereto (the "Rolled Common Stock") or the Options set forth beside such Rolling Securityholder's name on EXHIBIT B hereto (the "Rolled Options"); and (ii) to the extent that such Rolling Securityholder is not consummated and this Agreement is terminated eligible to receive a portion of the Merger Consideration as contemplated by Section 1(b)(i) of this Agreement, such Rolling Securityholder shall receive Parent Common Stock or options to purchase Parent Common Stock, as applicable, as set forth in, and subject to the terms and conditions set forth in Section 2(c) of, the Subscription Agreement by and between Parent and such Rolling Securityholder dated as of October 2, 1998 and/or the Signing Escrow AgreementReplacement Stock Option Agreement by and between Parent and such Rolling Securityholder dated as of October 2, then in such instance the Company shall be entitled to retain the Initial Earnxxx Xxxey and the Additional Earnxxx Xxxey, together with any interest or income earned thereon, as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions of Section 2(b) of the Signing Escrow Agreement, then in such instance the Purchaser shall be entitled to be refunded a portion of the Additional Earnxxx Xxxey equal to Two Hundred and Fifty Thousand Dollars ($250,000) and the Initial Earnxxx Xxxey together with the remainder of any Additional Earnxxx Money (and any earnings thereon) will be retained by the Company as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty, and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by Section 2(a) of the Signing Escrow Agreement, then in such instance the Company shall promptly after the termination of this Agreement refund the Initial Earnxxx Xxxey to the Purchaser, in cash, together with interest thereon for the number of days it had such Initial Earnxxx Money calculated at a per annum rate equal to the prime rate as announced by the Wall Street Journal at such time and Purchaser shall be entitled to be refunded the Additional Earnxxx Xxxey (and any earnings thereon). If the Merger contemplated hereby is consummated, then the Initial Earnxxx Xxxey (plus any interest or income earned thereon as calculated above less the Aggregate Preferred Redemption Consideration) shall be forwarded by the Company on behalf of Purchaser to the Exchange Agent on the Closing Date as part of the Aggregate Merger Consideration, and the bank acting as escrow agent under the Signing Escrow Agreement shall be instructed by the Company and Purchaser to release all funds in the escrow account under the Signing Escrow Agreement pursuant to the instructions of Purchaser. The parties hereto agree to promptly take all1998.

Amendment to Merger Agreement. If The Merger Agreement shall be, and it hereby is, amended as follows: (a) Section 1.11 is hereby amended to delete the first sentence thereof in its entirety and replace it with the following: “On the Closing Date and immediately following the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions set forth in Section 2(c) of the Signing Escrow Agreement, then in such instance the Company shall be entitled to retain the Initial Earnxxx Xxxey and the Additional Earnxxx Xxxey, together with any interest or income earned thereon, as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions of Section 2(b) of the Signing Escrow Agreement, then in such instance the Purchaser shall be entitled to be refunded a portion of the Additional Earnxxx Xxxey equal to Two Hundred and Fifty Thousand Dollars ($250,000) and the Initial Earnxxx Xxxey together with the remainder of any Additional Earnxxx Money (and any earnings thereon) will be retained by the Company as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty, and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by Section 2(a) of the Signing Escrow Agreement, then in such instance the Company shall promptly after the termination of this Agreement refund the Initial Earnxxx Xxxey to the Purchaser, in cash, together with interest thereon for the number of days it had such Initial Earnxxx Money calculated at a per annum rate equal to the prime rate as announced by the Wall Street Journal at such other time and Purchaser shall be entitled to be refunded the Additional Earnxxx Xxxey (and any earnings thereon). If the Merger contemplated hereby is consummated, then the Initial Earnxxx Xxxey (plus any interest or income earned thereon as calculated above less the Aggregate Preferred Redemption Consideration) shall be forwarded by the Company on behalf of Purchaser to the Exchange Agent on after the Closing Date as part determined by North, First Citizens Bank and Trust Company, Inc., a South Carolina state-chartered bank and a wholly-owned Subsidiary of South (“South Bank”), will merge (the “Bank Merger”) with and into First-Citizens Bank & Trust Company, a North Carolina state-chartered bank and a wholly-owned Subsidiary of North (“North Bank”).” (b) Section 6.15 is hereby amended to delete the first sentence thereof in its entirety and replace it with the following: “Prior to the record date of the Aggregate South Meeting, South shall take all necessary action to effect the redemption of all of the outstanding shares of South Series A preferred stock, South Series B preferred stock, South Series C preferred stock, South Series E preferred stock, South Series F preferred stock and South Series G preferred stock (collectively, the “South Preferred Stock”) for an amount in cash equal to $50.00, $50.00, $100.00, $200.00, $50.00 and $50.00 per share, respectively, plus any dividends accrued but unpaid thereon.” (c) Section 7.2(e) is hereby deleted in its entirety and replaced with the following: “Federal Tax Opinion. North shall have received the (i) opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., dated as of a date prior to the date the S-4 is declared effective under the Securities Act, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger Considerationshall qualify as a “reorganization” within the meaning of Section 368(a) of the Code, and (ii) opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., dated as of the bank acting as escrow agent under the Signing Escrow Agreement shall be instructed by the Company and Purchaser to release all funds in the escrow account under the Signing Escrow Agreement pursuant Closing Date, to the instructions effect that, on the basis of Purchaser. The parties hereto agree facts, representations and assumptions set forth or referred to promptly take allin such opinion, the Merger shall qualify as a “reorganization” within the meaning of Section 368(a) of the Code.” (d) A new Section 7.2(f) is hereby added to the Merger Agreement to read in its entirety as follows:

Amendment to Merger Agreement. If (a) The number "74,250,000" which appears in the first line of the definition of "Per Share Value" in Article I, 1.1, is hereby deleted and replaced with the number "75,000,000". (b) The parties acknowledge that the certificates representing 100 shares of Common Stock held by the X. Xxxxx Limited Partnership have been transferred as of the date hereof to F. Xxxxx Xxxxx, personally, and X. Xxxxx Limited Partnership shall no longer be (i) deemed a "Seller" as such term is defined in the Merger contemplated hereby is not consummated and this Agreement is terminated as or (ii) a party to the other agreements entered into in connection with the transactions contemplated by the terms Merger Agreement. (c) The last sentence of Section 7.9 of the Merger Agreement is amended to read as follows: "In the event Buyer does not obtain a Tax Opinion relating to such Prohibited Action, the Sellers reserve all rights (contractual or otherwise) to which they are entitled as a matter of Law arising from such Prohibited Action." (d) Section 8.4(b) of the Merger Agreement is amended to read as follows: "Notwithstanding the foregoing, during the Restriction Period, each of the Sellers shall be permitted to sell, transfer, convey, pledge or otherwise dispose of its Pro Rata Portion of: (i) the number of shares of Buyer Common Stock (rounded down to the nearest whole share) equal to the quotient of (A) the difference between $25 million less the total Cash Consideration divided by (B) the Buyer Price, (ii) following the twelve month anniversary of the Closing Date, up to one-half of the Stock Consideration remaining after the release of the number of shares of Buyer Common Stock pursuant to clause (i) above, (iii) following the eighteen month anniversary of the Closing Date, up to three quarters of the Stock Consideration remaining after the release of the number of shares of Buyer Common Stock pursuant to clauses (i) and conditions (ii) above and (iv) all of the Stock Consideration following the twenty-four month anniversary of the Closing Date. The operative agreement of the Trust shall provide that the Trust is not permitted to sell, transfer, convey, pledge or otherwise dispose of the Trust Consideration until the twenty-four month anniversary of the Closing Date, at which point the Trust Consideration will no longer be subject to the restrictions set forth in this Section 2(c) of the Signing Escrow Agreement, then in such instance the Company shall be entitled to retain the Initial Earnxxx Xxxey and the Additional Earnxxx Xxxey, together with any interest or income earned thereon, as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions of Section 2(b) of the Signing Escrow Agreement, then in such instance the Purchaser shall be entitled to be refunded a portion of the Additional Earnxxx Xxxey equal to Two Hundred and Fifty Thousand Dollars ($250,000) and the Initial Earnxxx Xxxey together with the remainder of any Additional Earnxxx Money (and any earnings thereon) will be retained by the Company as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty, and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by Section 2(a) of the Signing Escrow Agreement, then in such instance the Company shall promptly after the termination of this Agreement refund the Initial Earnxxx Xxxey to the Purchaser, in cash, together with interest thereon for the number of days it had such Initial Earnxxx Money calculated at a per annum rate equal to the prime rate as announced by the Wall Street Journal at such time and Purchaser shall be entitled to be refunded the Additional Earnxxx Xxxey (and any earnings thereon). If the Merger contemplated hereby is consummated, then the Initial Earnxxx Xxxey (plus any interest or income earned thereon as calculated above less the Aggregate Preferred Redemption Consideration) shall be forwarded by the Company on behalf of Purchaser to the Exchange Agent on the Closing Date as part of the Aggregate Merger Consideration, and the bank acting as escrow agent under the Signing Escrow Agreement shall be instructed by the Company and Purchaser to release all funds in the escrow account under the Signing Escrow Agreement pursuant to the instructions of Purchaser. The parties hereto agree to promptly take all8.4."

Amendment to Merger Agreement. If The Merger Agreement is hereby amended as follows: (i) all releases required of resigning officers and directors relating to any moneys owed to or employment, consulting or other agreements with such resigning officers and directors shall be given mutually in the form appended hereto as EXHIBIT C upon the execution of this Agreement in consideration for which Charxxx X. Xxxxx, Xxq., Davix X. Xxxxxxx, Xxmex X. Xxxxxxx, Xx. xxx Willxxx X. Xxxx, xx each hereby granted options by the Purchaser to purchase 25,000 shares of the Purchaser's common stock (the "Action Common Stock") for a period of five years at $1.00 per share for 12,500 shares and $1.25 for the balance; (ii) the shares of GVS Common Stock referred to in Section 1.02 of Article I shall exclude the GVS Shares; (iii) all representations and warranties shall be true and correct as of the date hereof; and (iv) the conditions of closing set forth in Section 5.03 of Article V is hereby waived except that (A) neither party shall be obligated to proceed with the Merger contemplated hereby if the consummation thereof is not consummated enjoined by a court of competent jurisdiction, (B) shareholder approval of both parties shall be required; and this Agreement (C) the calculation STOCK PURCHASE AGREEMENT BETWEEN ACTION INDUSTRIES, INC. AND GENERAL VISION SERVICES, INC. DATED AS OF MARCH 18, 1998 of the Purchaser's negative net worth for the purpose of issuing B Preferred Stock shall be made as of December 31, 1997 and which is terminated $(525,012) based upon the statement of Net Worth annexed hereto as contemplated by Schedule 2.1, (D) all of the terms and conditions set forth in Section 2(c5.03(h), (o) of the Signing Escrow Agreement, then in such instance the Company shall be entitled to retain the Initial Earnxxx Xxxey and the Additional Earnxxx Xxxey, together with any interest or income earned thereon, as and for full liquidated damages with respect (p). Anything to the transactions contemplated hereby contrary not withstanding, options and/or warrants held by resigning officers and directors and all rights to indemnity and liability insurance coverage to which they are entitled are not as a penalty and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by the terms and conditions of Section 2(b) of the Signing Escrow Agreement, then in such instance the Purchaser shall be entitled to be refunded a portion of the Additional Earnxxx Xxxey equal to Two Hundred and Fifty Thousand Dollars ($250,000) and the Initial Earnxxx Xxxey together with the remainder of any Additional Earnxxx Money (and any earnings thereon) will be retained by the Company as and for full liquidated damages with respect to the transactions contemplated hereby and not as a penalty, and the Company shall have no further rights or claims hereunder. If the Merger contemplated hereby is not consummated and this Agreement is terminated as contemplated by Section 2(a) of the Signing Escrow Agreement, then in such instance the Company shall promptly after the termination of this Agreement refund the Initial Earnxxx Xxxey to the Purchaser, in cash, together with interest thereon for the number of days it had such Initial Earnxxx Money calculated at a per annum rate equal to the prime rate as announced by the Wall Street Journal at such time and Purchaser shall be entitled to be refunded the Additional Earnxxx Xxxey (and any earnings thereon). If the Merger contemplated hereby is consummated, then the Initial Earnxxx Xxxey (plus any interest or income earned thereon as calculated above less the Aggregate Preferred Redemption Consideration) shall be forwarded by the Company on behalf of Purchaser to the Exchange Agent on the Closing Date as part of the Aggregate Merger Consideration, and the bank acting as escrow agent under the Signing Escrow Agreement shall be instructed by the Company and Purchaser to release all funds in the escrow account under the Signing Escrow Agreement pursuant to the instructions of Purchaser. The parties hereto agree to promptly take allreleased.